Full text of "Ayodhya Verdict"

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(Judgment reserved on 26.07.2010)
(Judgment delivered on 30.09.2010)

In the High Court of Judicature at Allahabad

(Lucknow Bench)

Other Original Suit (O.O.S.) No.1 of 1989

(Regular Suit No.2 of 1950)

Gopal Singh Visharad since deceased and survived by

Rajendra Singh Vs. Zahoor Ahmad and others

AND

Other Original Suit No.3 of 1989

(Regular Suit No.26 of 1959)
Nirmohi Akhara and others Vs. Baboo Priya Datt Ram

and others

AND

Other Original Suit No.4 of 1989

(Regular Suit No. 12 of 1961)

The Sunni Central Board of Waqfs, U.P. and others Vs.

Gopal Singh Visharad (since deceased) and others

AND

Other Original Suit No.5 of 1989

(Regular Suit No.236 of 1989)

Bhagwan Sri Ram Lala Virajman and others Vs.

Rajendra Singh and others

Hon'ble S.U. Khan, J.

INDEX

SINo Description Page
No.

1 Prelude 4

2 Foreword 4

3 Introduction 5

;i) Suit of 1885 (9)

;ii) Incident of 23. 12. 1949 (23)

[iii) Section 145, Cr.P.C. proceedings (36)
Pleadings 42

[I) Suit No.1 (42)

[ii) Suit No.2 (already dismissed) (45)

;iii) Suit No.3 (46)

;iv) Suit No.4 (50)

Jv) Written statements in Suit No.4 (59)

[vi) Suit No.5 (69)

mportant Stages 78

i) Consolidation and withdrawal (78)

ii) Order I Rule 8 and guardian (79)

iii) Temporary Injunction (81)

iv) Opening of lock (84)

v) State Government acquisition (91)

vi) Demolition (92)

vii) Central Government acquisition (95)

viii) Impleadment applications rejected

98)

(ix) Issues (100)

(x) Oral evidence (127)

(xi) Documentary evidence (128)

(xii) A.S.I. Report (129)

6 Findings 137

(i) Limitation (137)

(ii) Res-judicata/ admissibility of Suit of

1885 (189)

(iii) When and by whom the disputed

structure constructed and its nature (200)

(iv) Whether any temple demolished and

Whether the disputed site was treated/

believed to be birth place (231)

(v) When the idols were placed inside

(246)

(vi) When Ram Chabutra etc. came into

existence in outer courtyard (249)

(vii) Possession and title (250)

(viii) Whether the mosque was valid

mosque (255)

(ix) Misc. findings (259)

(x) Relief (262)

7 Epilogue 276

8 Gist of findings 280

9 Operative portion 284

Prelude

Here is a small piece of land (1500 square yards)
where angels fear to tread. It is full of innumerable land
mines. We are required to clear it. Some very sane
elements advised us not to attempt that. We do not
propose to rush in like fools lest we are blown. However
we have to take risk. It is said that the greatest risk in life
is not daring to take risk when occasion for the same
arises.

Once angels were made to bow before Man.
Sometimes he has to justify the said honour. This is
one of those occasions. We have succeeded or failed?
No one can be a judge in his own cause.

Accordingly, herein follows the judgment for which
the entire country is waiting with bated breath.

Foreword

Pleadings, issues, evidence oral as well as
documentary, the arguments of learned counsel of all

the parties and cited books gazettes and rulings of Privy
Council, Supreme Court and High Courts have been
mentioned in great detail in the judgment of my
esteemed brother Sudhir Agarwal, J. I am therefore
skipping the details and giving only a bird's eye view
thereof.

Introduction: -

(Mainly the position till the institution of the first suit on

16.01.1950)

The principle enunciated in Sections 6, 7 and 9 of
Evidence Act is the reason for this introduction.

In Ayodhya, District Faizabad, there is a premises
consisted of constructed portion and adjoining land
surrounded by a boundary wall (total area about 1500
square yard) used for worshipping purpose(s), which
was undisputedly constructed before 18 th Century.
Muslims claimed that the entire premises was a mosque
known by the name of Babari Mosque. However, it is
admitted to the Muslims that since middle of 19 th

Century outer part of the adjoining land was having a
chabootara towards South-East admeasuring 17' x 21'
(39.6 square yard) on which Hindus were worshipping.
Hindus claim it to be much older. Rival claims of both
the parties over the premises in dispute have been
judicially noticed in 1885. The dispute had earlier also
been noticed in the records of different government
officers since 1855 when a riot took place between
Hindus and Muslims. It is mentioned that on a nearby
temple known by the name of Hanuman Garhi, Muslims
had some claim asserting that to be previously a
mosque. The riot started at Hanuman Garhi and
Muslims were repelled by the Hindus. The retreat and
the fight is stated to have continued till the premises in
dispute whereat several Muslims were killed. They are
said to have been buried around the disputed premises.
After the said riot, a bifurcation was made of the
adjoining land by placing a brick and grill (vertical iron
bars) wall (railing) of 7 or 8 feet height dividing the

adjoining land into two parts, inner courtyard adjacent to
the constructed portion and outer courtyard adjacent to
the boundary wall towards East. The outer Courtyard
also included a flank in between northern side of the
constructed portion and inner courtyard on the one hand
and northern boundary wall on the other hand. The
railing divided the entire premises in two almost equal
parts. The railing/ grill was placed either in 1956 when
Awadh was annexed by the Britishers or immediately
after 1957 war of independence (called mutiny by
Britishers.) This was done with the intention that
Muslims must use the inner portion and Hindus the
outer portion so that chances of quarrel between them
were minimised. Initially there was only one door in the
boundary wall towards East, however in or about 1877
another door was opened towards North by the
government authorities, which was given under the
control and management of Hindus in spite of severe
objection by Muslims. The occasion for opening the

second door was that on two occasions in a year large
number of Hindu devotees gathered to worship at the
Chabootara and in order to control the crowd, it was
essential to have one door for entry and the other for
exit. At what particular place in the northern wall the
door shall be opened was itself a subject of raging
dispute between Hindus and Muslims. Ultimately a
fragile truce was arrived at and it was agreed that the
exact place must be marked by some European Officer.
It was accordingly done.

The spot position is clear from the two maps
prepared by Sri Shiv Shanker Lai, Vakil under order of
Civil Judge dated 01.04.1950 passed in the first suit.
Muslim parties did not object to the dimensions shown in
the maps, they only objected to the nomenclature given
to different portions by the Commissioner in his report
and the maps e.g. Sita Rasoi, Bhandar, Hanuman Dwar
etc. The objections have been noted in the order dated
20.11.1950 passed in the first suit. The Commissioner

prepared two maps and termed them as Plan-I and
Plan-ll. The first was of the premises in dispute and the
other of the premises in dispute and the adjoining
locality. The Plan-I map is on a big page and on the
scale of one inch equal to 10 feet. The map redrawn on
the scale of 0.6 inch equal to 10 feet is reproduced on
page No. 10. Plan-ll map is given on page No.11. Total
area shown is about 1480 square yards. The portions
inside and outside the railing are about 740 square
yards each.

Suit of 1885:-

Suit No. 61/280 of 1885 was filed by Mahanth
Raghubar Das, Mahanth Janam Asthan situate at
Ayodhya against Secretary of State for India in Council.
The suit was instituted on 29.01.1885. Certified copy
of the plaint is Ex. A-22 in the first suit. Mohd.
Ashgar claiming to be Mutawalli of Babari Mosque filed

BASED ON THE PLAN NO- 01 PREPARED BY SHRI SHW 5HANEAR LAL PLEADER, COMMISSIONER, DATED 25JK. 1950
JN THE COURT OF THE CIVIL JUDGE FAIZABAD REGULAR SUIT NO. 2 OF 19S0/ SHRI OOP AL Sfl«JH VEHARAD

VJS ZAHUR AHMAD AND OTHERS.

men

Reduced Scale 0.6"= 10' or 1" = 16.66'

A.F. =97' E.F. = 140'

B.C.= 9' C.D.= 21'

(A.F. X E.F.) - (B.C. X CD.) = 1482.5 Sq. Yd.

G.H. =66' H.J. =89'

K.L-21' LD.= 40'

(G.H. X H.J.) + (K.L. X LD.) = 746 Sq. Yd.
Exact Dimensions and area has been calculated from the original map with the help of scale. They

are not given in the original map which is on the scale of 1"=10'

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impleadment application in the said suit, which was allowed.
Mohd. Ashgar alone mainly contested the suit. Along with
the plaint sketch map was also annexed. The suit was for
permission to construct temple over the Chabutra Janam
Asthan situate in Ayodhya having dimensions of 17' x 21'
and for restraining the defendant from interfering in the said
exercise of the plaintiff. It was stated in the plaint that Janam
Asthan situate at Ayodhya in the city of Faizabad was a very
old and sacred place of worship and plaintiff was Mahanth
thereof, that on the Chabutra Charan Paduka was affixed
(or lied) and a small temple was kept, which was
worshipped, that chabutra was in possession of the plaintiff
and plaintiff and other (fuqra itinerant monks; c.f. Persian
English Dictionary by F. Steingass) felt great difficulty in
extremely hot, cold and rainy seasons as there was no
building thereupon and if temple was constructed on the
chabutra (platform) no one would suffer any injury, that in
March, 1883, due to certain objections of Muslims, Deputy
Commissioner prohibited the construction of the temple.
Thereafter, in Para-5 of the plaint, it was stated that a well

wisher public man is entitled to construct any type of
building on the land owned and possessed by him and that
a just government was duty bound to protect the said right
of the public and help in obtaining the same and to maintain
the law and order. The map which was annexed along with
the plaint is given on page No. 14. (The map was almost
same as the map prepared by Sri Shiv Shanker Lai, Vakil/
Commissioner in the first suit.) In the map it was clearly
shown that the portion of inner courtyard and the
constructed portion was masjid and in possession of
Mohammedans and outer courtyard including chabutra in
question was shown in possession of Hindus. In the outer
courtyard near the northern gate Sita Rasoi was shown and
towards north of the eastern gate, chhappar (thatch) was
shown. In the said suit, amin was directed to prepare map,
which was accordingly prepared. Certified copy of the same is
Annexure A-25. The said map which substantially tallies with
plaint map of suit of 1885 is also given on page No. 15. In this
map hauz ghusal (water tank for bath) is shown in the inner
courtyard.

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Certified copy of written statement filed by Mohd.
Ashgar is Ex. A-23. In the written statement, it was
mentioned that Babar constructed mosque and on the
outer door (eastern one), the word 'Allah' was inscribed
and thereafter the ownership of any other person did not
remain/ survive hence plaintiff was not owner of the
chabutra or the land beneath that unless the King who got
constructed the mosque or any other King granted
permission for the same and for that no document had
been filed by the plaintiff hence plaintiff was not entitled to
construct the temple. It was further stated in Para-2 that
by merely going inside part of the mosque plaintiff or the
Hindus could not have any right for the reason that often
non Muslims visited Imambaras, mosques and graves for
making offerings and Muslims did not prohibit the same. In
Para-3 of the written statement, it was stated that since
the time of construction of the mosque till 1856, there was
no chabutra and it was constructed in 1857. In Para-4, it
was stated that plaintiff and other Hindus were permitted
to visit the chabutra with certain conditions one of which

was that no new construction should be made
thereupon, hence plaintiff did not become owner. It
was further stated that whenever the plaintiff or
some other Hindus intended to do something new
inside the compound of the mosque the
government stopped them therefrom, and that a
monk had placed a thatch, which was removed. It
was further stated that plaintiff had no right to
construct the temple. However, Mohd. Ashgar, the
subsequently impleaded defendant did not deny
the correctness of the map filed along with the
plaint.

The trial court/ Sub-Judge, Faizabad decided
the suit on 24.12.1885, certified copy of which is
Ex. A-26 (the Judgment is in Urdu). The Sub-
Judge held that regarding measurement, after
Amin's report Mohd. Ashgar had no objection

except for view inches. The Sub-Judge further
found that charans (feet) were engrossed on the
chabutra and an idol of Thakurjee was also
installed and these things were being worshipped.
It was also held that from the perusal of the
corrected map of Amin it was clear that in between
mosque and chabutra there was a pucca wall
having grill/ railing which meant that dividing line
between the two was established/ made. It was
also observed that the said fact was amply
substantiated from the gazette which was prepared
before the dispute, which was sub-judice in the
said suit and in the Gazette it was mentioned that
previously both Hindus and Muslims used to offer
prayer and worship at that place, however in 1855
after the fight between Hindus and Muslims, the
grill/ railing wall was constructed to resolve the

dispute so that the Muslims should worship inside the wall
and Hindus outside the wall. In the last paragraph, it was
held that there could not be any question or doubt
regarding the possession and ownership of Hindus over
the chabutra. It was further held that near the chabutra
there was the wall of the mosque and word 'Allah' was
inscribed thereupon, hence it was against public policy to
permit construction of temple thereupon as in that
eventuality there would be sound of bells and shankh by
Hindus and as Muslims pass from the same way, it would
lead to great conflict resulting in massacre of thousands of
people. Ultimately, it was held that the Court was of the
opinion that granting permission to construct temple would
amount to laying down foundation of riot between the two
communities. It was also observed that the need of the
hour and the requirement of justice was not to grant the
relief which had been claimed. Reference was made to
the law of contract prohibiting performance of such
contract which is opposed to the public policy (probably
Section 23 of Contract Act, 1872). Ultimately, the suit was

dismissed.

Against the said judgment and decree, Civil Appeal

No. 27 of 1886 was filed, which was disposed of by Mr.

F.E.A. Chamier, District Judge, Faizabad on 18.03.1886.

Certified copy of the said judgment is Ex. A-27. On

13.03.1886, the learned District Judge had passed the

order proposing to visit the spot on 17.03.1886. In the

judgment dated 18.03.1886, it is mentioned that the

learned District Judge visited the land in dispute a day

before in the presence of all the parties and he found that

the Masjid built by the Emperor Babar stood on the border

of the town of Ayodhya. Thereafter, it was observed that:

"It is most unfortunate that a masjid should have
been built on land specially held sacred by the
Hindus, but as that event occurred 356 years ago it is
too late now to remedy the grievance. All that can be
done is to maintain the parties in status quo."
It was further held that:

11 The entrance to the enclosure is under a
gateway which bears the superscription ' Allah' -
immediately on the left is the platform or chabutra of
masonry occupied by the Hindus. On this is a small

superstructure of wood in the form of a tent. This
chabutra is said to indicate the birthplace of Ram
Chandra. In front of the gateway is the entry to the
masonry platform of the masjid. A wall pierced here
and there with railings divides the platform of the
masjid from the enclosure on which stands the
chabutra."

The learned District Judge struck out the words

holding the ownership of Hindus over chabutra from the

judgment of the Sub-Judge as being redundant. In the

said judgment, it was also observed that:

"The true object of the suit was disclosed by B.
Kuccu Mul yesterday when we were standing near
the masjid - namely that the British Government as
no respector of persons was asked through its courts
to remedy an injustice committed by a Mohammadan
emperor. "

Ultimately, appeal was dismissed. Against the said
judgment and decree, Second Civil Appeal No. 122 of
1886 was filed, which was dismissed by the Court of
Judicial Commissioner, Oudh on 01.11.1886. Copy of the
said judgment has been annexed along with W.P. No. 746

of 1986, which is directed against order dated 01.02.1986
passed in a misc. appeal by D.J. Faizabad directed
against an interim order passed in first suit when it was
pending before Munsif, Faizabad. The said writ petition is
being decided along with these suits. The penultimate
sentence of the judgment in second appeal dated
01.11.1886 is as follows:

"There is nothing whatever on the record to

show that plaintiff is in any sense the proprietor of the

land in question. "

In the earlier part of the said judgment by Justice, W.

Young, Judicial Commissioner, Oudh, it was observed as

follows:

11 The matter is simply that the Hindus of Ajodhya want
to create a new temple or marble baldacchino over
the supposed holy spot in Ajodhya said to be the
birthplace of Shri Ram Chandar Now this spot is
situated within the precinct of the grounds
surrounding a mosque erected some 350 years ago
owing to the bigotry and tyranny of the Emperor
Babur, who purposely chose this holy spot according
to Hindu legend as the site of his mosque.

The Hindus seem to have got very limited rights
of access to certain spots within the precincts
adjoining the mosque and they have for a series of
years been persistently trying to increase those rights
and to erect buildings on two spots in the enclosure:
(1) Sita ki Rasoi
(b) Ram Chandar ki J an am Bhumi.

The Executive authorities have persistently
refused these encroachments and absolutely forbid
any alteration of the 'status quo'.

I think this is a very wise and proper procedure
on their part and I am further of opinion that
the Civil Courts have properly dismissed the
Plaintiffs claim. "

Incident of 23.12.1949:-

The position continued until 22/23.12.1949. In
the evening (7 p.m.) of 23 rd December, 1949,
Pandit Sri Ram Deo Dubey, Sub-Inspector
Incharge Thana Ayodhya lodged FIR mentioning
therein that on information received through Mata

Prasad, constable No. 7, he (Mr. Dubey) reached

the disputed site at about 7 o'clock in the morning

and learnt that a crowd of 50 or 60 persons had

broken the locks, which were put on the compound

of the Babri Mosque and by climbing the walls

by ladders illegally interfered in the mosque and
had placed the idol of Sri Bhagwan and had written on
the walls inside and outside Sita Ram Ji etc. in red and
yellow. It was also mentioned that constable No. 2,
Hansraj, who was on the duty, prohibited them but they
did not pay any heed thereupon, he called the P.A.C.
guard for help, which was there, however by the time,
the guard could reach, the persons had entered the
mosque. It has also been mentioned that thereafter high
officers of the District came to the spot and engaged
themselves in management. It is further mentioned that
afterwards a crowd of 5000 people collected and raised
religious slogans and performed Kirten. It is further

mentioned that Abhay Ram Dass, Ram Shukul Dass,
Sheo Darshan Dass and 50 or 60 other persons had
committed riot, trespassed into the mosque and installed
an idol in the mosque and had desecrated the mosque.

For some time before the incident of 23.12.1949
tension between the two communities had increased
and Muslims were apprehending the incident. It is
evident from the letter of S.P. dated 29.1 1 .1949, letter of
D.M. dated 16.12.1949, diary/ report of the D.M.,
Faizabad of 23.12.1949 and of few subsequent dates.
The report also shows that the idol was placed inside
the mosque at about 4 a.m. on 23.12.1949 and
thereafter under the arrangement made by the D.M.
Bhog and Puja of the idol by two or three pandits was
started and continued.

Under the directions of this Bench, The D.M.
Faizabad brought the original file containing inter alia
the reports regarding the incident of 23.12.1949 of
different officers particularly of Sri K.K.K. Nayar, Deputy

Commissioner/ District Magistrate of Ayodhya. It also

contains some reports regarding riot of 1934 and report

of Special Intelligence Officer, Faizabad of 1961

pertaining to the dispute of two Mahants regarding Puja

etc. in the premises in dispute. By order dated

29.05.2009 passed by this Bench the said file was taken

on record and was directed to be sealed. The relevant

details of the contents of the documents in the file are

given below.

One of the documents in the said file is letter dated

29.11.1949 written by S.P. Faizabad, Sri Kripal Singh

addressed to Sri Nayar, Deputy Commissioner/ D.M.,

Faizabad which is reproduced below:

"My dear Nayar,

I visited the premises of Babri Mosque
and the Janm Asthan in Ajodhya this evening. I
noticed that several 'Hawan Kunds' have been
constructed all around the mosque. Some of them
have been built on old constructions already
existing there.

There is a place known as Kuber Qila situated
on a high mound about 2 furlongs from the Janm
Asthan. Several graves have been dismantled
there. Inside an enclosure near the Kuber Qila,
where probably there was a grave, deity of
Mahadeoji has been installed. This place is quite
distant from the place where the police guard is
posted and could not have been noticed by them.

I found bricks and lime also lying near the
Janm Asthan. They have a proposal to construct a
very big Havan Kund where Kirtan and Yagna on
Puranmashi will be performed on a very large
scale. Several thousand Hindus, Bairagis and
Sadhus from outside will also participate. They also
intend to continue the present Kirtan till
Purnamashi. The plan appears to be to surround
the mosque in such a way that entry for the
Muslims will be very difficult and ultimately they
might be forced to abandon the mosque. There is a
strong rumour, that on purnamashi the Hindus will
try to force entry into the mosque with the object of
installing a deity. "

Thereafter, there is the report of Sri K.K.K. Nayar,

D.M. running in scores of pages. The report, which is in

the form of diary mentioning the dates and time starts

from 23.12.1949, 7 a.m. The first entry is that an

ammunition dealer of Faizabad came to the D.M. and

informed him that at about 4 a.m. in the morning an idol

had been installed inside Babari Masjid and some 800

Bairagis were in the Masjid chanting and worshipping. It

is further mentioned that:

"this news came as a great surprise as it had
never been reported or suspected that there was
any move to enter and occupy the Masjid by force"

The surprise does not appear to be genuine as
there was a clear mention of such a plan in the above
letter of S.P. dated 29.11.1949. Moreover, in the same
records there is a letter by Sri Nayar to Sri Govind
Narayan, Home Secretary, Government of U.P.,
Lucknow dated 16.12.1949 in reply to his wireless
message dated 08.12.1949, annexing therewith site
plan showing the position of Babari Masjid and Sri Ram

Chandra Ji Mandir at Janm Bhoomi. In the said letter,
Sri Nayar stated that a magnificent temple at the site
was constructed by Vikramaditya and in 16 th Century, it
was demolished by Babar and the mosque known as
Babari Masjid was constructed and in the said process,
building material of the temple was used, and that a long
time before Hindus were again restored to possession of
a site thereinin, i.e. at the corner of two walls. It is further
mentioned that "Muslims who go to the mosque pass in
front of the temple and there has frequently been trouble
over the occasional failure of Muslims to take off their
shoes." Paras 4, 5 & 6 and part of para-7 of the report
are reproduced below:

"Some time this year probably in October or
November some grave-mounds were partially
destroyed apparently by Bairagis who very keenly
resent Muslim associations with this shrine. On
12.11.49 a police picket was posted at this place.
The picket still continues in augmented strength.

There were since other attempts to destroy

grave-mounds. Four persons were caught and
cases are proceeding against them but for quite
some time now there have been no attempts.

Muslims, mostly of Faizabad have been
exaggerating these happenings and giving
currency to the report that graves are being
demolished systematically on a large scale. This is
an entirely false canard inspired apparently by a
desire to prevent Hindus from securing in this area
possession or rights of a larger character than have
so far been enjoyed. Muslim anxiety on this score
was heightened by the recent Navanh Ramayan
Path, a devotional reading of Ramayan by
thousands of Hindus for nine days at a stretch. This
period covered a Friday on which Muslims who
went to say their prayers at the mosque were
escorted to and from safely by the Police.

As far as I have been able to understand the
situation the Muslims of Ayodhya proper are far
from agitated over this issue with the exception of
one Anisur Rahman who frequently sends frantic
messages giving the impression that the Babri
Masjid and graves are in imminent danger of
demolition. "

Thereafter, it is mentioned that some other

Muslims were inciting general Muslims.

Thereafter, it is mentioned that on 09.12.1949

when Muslims were leaving Babari Masjid after

friday prayers under police help, they shouted

their famous war cry "Allah-O-Akbar" which

created considerable resentment in the minds of

Hindus. Thereafter, it is mentioned that repeated

complaints by Muslims were grossly exaggerated

as the situation was entirely in control and police

picket was functioning efficiently. Thereafter, it

was mentioned that Muslim agitation and

truculence could bring the situation out of control.

The last paragraph stated as follows:

"Lastly I would request that no credence
be given to the false reports carried to
Lucknow and other places from time to time

by Ghulam Husain, Ahmad Beg and persons
under their influence. "

On the one hand in his letter dated
16.12.1949, he requested the State Government
not to give credence to the apprehensions of the
Muslims regarding safety of the mosque and on
the other hand in his diary/ report dated
23.12.1949, he mentioned that the incident came
as a great surprise to him.

Photostat copy of the site plan annexed with
the said letter is given on page No. 33.

However, it may be mentioned that the
S.P. Sri Kripal Singh, who had expressed
grave apprehension regarding entry of
Hindus in the mosque for installing a

deity (on full moon which was to fall on 30.11.1949) in
his earlier letter dated 29.11.1949, retracted his steps
and in tune with the D.M. wrote in his letter to the D.I.G.
dated 02.02.1950 that the incident of 23.12.1949 could
not be predicted. Probably he wanted to avoid any
controversy and save his position after realising that
placing of idol inside the mosque was a fait accompli
and almost irreversible.

In the report/ diary of the D.M. it is mentioned that
on 23.12.1949 the crowd was controlled by permitting
two or three persons to offer bhog, i.e. Abhiram Dass,
Ram Shukal Dass and Sudarshan Dass. It was also
mentioned that removal of idol as desired/ directed by
the State Government was not possible and it would
lead to slaughter and would be most inadvisable. In the
entry of 25.12.1949, it is mentioned that Pooja and Bhog
was offered as usual. The noting in the diary/ report of
9.30 a.m. dated 27.12.1949 is that the D.M. outrightly
refused to abide by the direction of the Government to

remove the idol "and that if Government still insisted
that removal should be carried out in the face of these
facts, I would request to replace me by another officer".

The D.M./ Deputy Commissioner, Faizabad wrote
two letters dated 26 th & 27 th December, 1949 to Sri
Bhagwan Sahai, Chief Secretary Government of U.P.
Copies of the said letters have been filed by the State
Government in pursuance of orders passed by this
Court on the application of the plaintiffs of the leading
case (Suit No.4) for summoning certain documents from
the State Government and have been marked as
Annexures 66 & 67. In these letters also he insisted that
the incident of 23.12.1949 was unpredictable and
irreversible. He rather castigated the Government for
showing so much interest.

In the report/ diary dated 30.12.1949 it is mentioned
that Chief Secretary visited the spot, he was surrounded
by the crowd which uttered the loud cries of 'Bhagwan
ka Phatak Khol do.' It is also mentioned that Chief

Secretary was told by Naga Jamuna Das "that if this
spot would be argued to be different from Janam
Bhoomi, then they were prepared to receive any other
spot for the construction of the Janam Bhoomi temple
which could be proved to be the spot where the lord
was born"

There is a report of 26 th July, 1961 in the said

records by Special Intelligence Officer in which it is

mentioned as follows:

"It is reliably learnt that Baba Ram Lakhan
Sharan gets legal advice in this respect from Sri
K.K.K. Nayar (Ex-D.C. Faizabad) who is his
supporter also."

The report of 1961 was in relation to the dispute
between different mahants regarding control of Pooja,
which was going on and for receiving the monetary gain
through charawa etc.

Section 145. Cr.P.C. proceedings: -

On 29 th December, 1949, preliminary order under

Section 145, Cr.P.C. was issued by Additional City
Magistrate, Faizabad-cum-Ayodhya and simultaneously
attachment order was also passed treating the situation
to be of emergency. The disputed site was directed to
be given in the receivership of Sri Priya Datt Ram,
Chairman, Municipal Board. The complete order is
quoted below:-

"Whereas I, Markendeya Singh, Magistrate
First Class and Additional City Magistrate,
Faizabad-cum-Ayodhya, am fully satisfied from
information received from Police sources and from
other credible sources that a dispute between
Hindus and Muslims in Ayodhya over the question
of rights of proprietorship and worship in the
building claimed variously as Babari Masjid and
Janam Bhoomi Mandir, situtate at Mohalla Ram Kot
within the local limits of my jurisdiction, is only to
lead to a breach of the peace.

I hereby direct the parties described below
namely:-

1) Muslims who are bonafide residents of
Ayodhya or who claim rights of proprietorship or

worship in the property in dispute;

2) Hindus who are bonafide residents of
Ahodhya or who claim rights of proprietorship or
worship in the property in dispute;

To appear before me on 1 7 th day of January at
11 A.M. at Ayodhya Police Station in person or by
pleader and put in written statements of their
respective claims with regard to the fact of actual
possession of the subject of dispute.

And the case being one of the emergency I
hereby attach the said buildings pending decision.

The attachment shall be carried out
immediately by Station Officer, Ayodhya Police
Station, who shall then put the attached properties
in the charge of Sri Priya Datt Ram, Chairman
Municipal Board, Faizabad-cum- Ayodhya who shall
thereafter be the receiver thereof and shall arrange
for the care of the property in dispute.

The receiver shall submit for approval a
scheme for management of the property in dispute
during attachment, and the cost of management
shall be defrayed by the parties to this dispute in
such proportions as may be fixed from time to time.

This order shall, in the absence of information
regarding the actual names and addresses of the

parties to dispute to be served by publication in:-

1. The English Daily, "The Leader" Allahabad,

2. The Urdu Weekly "Akhtar" Faizabad

3. The Hindi Weekly "Virakta" Ayodhya.

Copies of this order shall also be affixed to the
walls of the buildings in dispute and to the notice
board at Ayodhya Police Station.

Given under my hand and the seal of the court
on this the twenty ninth day of December, 1949 at
Ayodhya. "

At the end of the para beginning with The
attachment' there was a line which was admittedly
scored off by the Magistrate himself. The Magistrate
admitted it in his reply/ response to the Transfer
Application filed in this Court for transfer of the case
under Section 145, Cr.P.C. The Magistrate stated that
he scored off the sentence before signing the order as it
was redundant. The original records of proceedings
under Section 145, Cr.P.C. have been summoned in
these suits. The cutting does not bear initials. The
sentence is readable with great difficulty. It is to the

effect that puja darshan shall continue as was being
done at that time (presently).

Sri Priya Datt Ram took charge on 05.01.1950 and
made inventory of the attached properties. Items No.1 to
14 and 16 to 20 relate to movable properties including
idols. Item No. 15 relates to building which states the
same to be three-domed building along with courtyard
and boundary wall and eastern boundary is shown as
Chabootara Mandir of Ram Ji under the ownership of
Nirmohi Akhara and courtyard of the same mandir.
Towards north the boundary mentioned is hata chhatti
courtyard and Nirmohi Akhara. The receiver Sri Priya
Datt Ram submitted the scheme of management to the
D.M. (in accordance with preliminary order) stating that
"the most important item of management is the
maintenance of Bhog and puja in the condition in which
it was carried on when I took over charge".

Muslims admit that since 23.12.1949, they have not
been able to offer the prayers in the mosque

(23. 12. 1949 was Friday).

According to the Muslims and some Hindu parties
in the suits, the idol of Lord Ram, which was on the
Chabootara in the outer courtyard was placed/
transferred under the central dome of the building.
According to the further case of the Muslims, the idol
was placed on mimbar (pulpit) in the meharab (arch)
under central dome from where on fridays, the Imam
(who leads the congregation prayers) used to read
khutba (Sermon, before friday prayer).

It appears that since 23.12.1949 firstly under the
directions of the executive authorities and thereafter
under the order of the Magistrate passed in
proceedings under Section 145, Cr.P.C. only two or
three Pandits were permitted to go inside the place
where idol was kept to perform religious ceremonies like
bhog and puja etc. and general public was permitted to
have darshan only from beyond the grill-brick wall.

These suits, popularly known as title suits, were

instituted before Civil Judge, Faizabad on 16.01.1950,
17.12.1959, 18.12.961 and 01.07.1989 respectively.

The constructed portion, boundary wall and Ram
Chabootara are no more in existence as they were
demolished by a large crowd of Hindus on 06.12.1992.
After demolition, makeshift structure was constructed by
the same people at the place where till then idol had
been kept and the idol was kept in the said makeshift
structure/ temple.

Pleadings of the Suit-
Suit No.1:-

The first suit, Other Original Suit (O.O. S.) No.1 of
1989, Regular Suit No. 2 of 1950, hereinafter referred to
as Suit No.1 was instituted on 16.01.1950. Sri G.S.
Visharad the plaintiff claimed in the plaint that he was
worshipping the Janam Bhumi, details of which were
given at the end of the plaint, idol of Bhagwan Sri Ram

Chandra Ji and Charan Paduka (foot impression). The
boundaries indicated that in the East there was bhandar
and Chabootara, in the north Sita Rasoi and parti
towards West and South. It presumably related to the
constructed portion and the inner courtyard. It was
further pleaded that for several days due to illness
plaintiff was not going to the disputed place, building/
site for worship and on 14.01.1950 when he went there
for worship and darshan, defendant No. 6, i.e. State of
U.P., Lucknow and its employees prevented the
petitioner from going inside where idols of Sri Ram
Chandra and others were placed and that it was done
on the undue insistence of defendants 1 to 5 (all
Muslims residents of Ayodhya, who all have now died
and have not been substituted.) It was also mentioned in
the plaint that the State and its employees, i.e.
respondents No. 7 to 9, K.K.K. Naiyar, Deputy
Commissioner, Faizabad, Markandey Singh, Additional
City Magistrate, Faizabad and Ram Kripal Singh, S.P.

Faizabad, (whose names have now been deleted and
only the designations remain) were unduly pressurising
the Hindu public for removal of the idols from the
existing place. The relief claimed was that it be declared
that the plaintiff according to his religion and custom is
entitled to do worship and darshan of Sri Bhagwan Ram
Chandra and others at the place of Janam Bhumi by
going near the idols without any let or hindrance and
defendants No. 6 & 9 have no right to interfere in the
said rights. Prohibitory injunction was also sought
against defendants No. 6 to 10 (defendant No. 10 is
Sunni Central Waqf Board of U.P. added in 1989).
Defendant No. 11 is Nirmohi Akhara added in 1990. The
injunction sought was that defendants No. 6 to 10 should
not remove the idols of Bhagwan Ram Chandra and
others from the place where the idols were and they
should also not close the way leading to that and should
not interfere in worship and darshan in any manner. The
original plaintiff Sri G.S. Visharad died and was

substituted by his son Rajendra Singh through order
dated 22.02.1986 who also claimed that like his father
he was entitled to worship and darshan.
Suit No.2 already dismissed as withdrawn:-

It is necessary at this stage to mention that one
more suit being Regular Suit No.25 of 1950 (O.O. S.
No.2 of 1989) had been filed by Paramhans
Ramchandra Das against Zahoor Ahmad and seven
others. First five defendants were Muslims, residents of
Ayodhya and those five defendants were defendants
No.1 to 5 in Suit No.1 also. Defendant No.6 was State of
U.P. and defendant No. 7 was Deputy Commissioner,
Faizabad. Sunni Central Board of Waqfs was added as
defendant No. 8 in 1989. The plaint was almost in
verbatim reproduction of the plaint of Suit No.1.
However, in Suit No.2, it was mentioned that notice
under Section 80, C.P.C. had been given to defendants
No.6 & 7 on 07.02.1950. Valuation was also same and
reliefs claimed were also same. Boundaries of the

property in dispute at the bottom of the plaint were also
same. The suit was filed on 05.12.1950. However, an
application to get the said suit dismissed as withdrawn
was filed by the plaintiff on 23.08.1990 which was
allowed on 18.09.1990. It appears that Suit No.2 was
filed only for the reason that before filing Suit No.1,
notice under Section 80, C.P.C. had not been given.
Suit No.3:-

O.O.S. No.3 of 1989, Regular Suit No.26 of 1959,
hereinafter referred to as Suit No.3 was filed by Nirmohi
Akhara through its Mahant. After the death of original
mahant, his chela was substituted. Defendant No.1 in
the suit was initially Babu Priya Datt Ram, who was
appointed as receiver in proceedings under Section 145,
Cr.P.C. Thereafter, the new receiver Sri Jamuna
Prasad was substituted at his place by order of court of
October 1989. Defendants No.2 to 5 were State of U.P.,
Deputy Commissioner Faizabad, City Magistrate and
S.P. Faizabad. Defendant No. 6 was Phekku but after

his death he has been substituted by his sons.
Defendant No. 7 was Mohd. Faiq. Defendant No. 8 was
Mohd. Achhan Mian. Defendant No. 11 Mohd. Farook
was added vide order of Court dated 03.12.1991.
Defendant No. 9 was U.P. Sunni Central Board of Waqfs
Lucknow added vide order of Court dated 23.08.1989.
One Umesh Chandra Pandey was later on impleaded as
defendant No. 10 on 28.01.1989 on his own application.
The case of plaintiff Nirmohi Akhara was that for a very
long time in Ayodhya an ancient math and akhara of
Ramanandi Varagis called Nirmohis existed which was
a religious establishment of a public character. It was
further pleaded that Janma Asthan now commonly
known as Janam Bhumi, the birth place of Lord Ram
Chandra at the time of filing of the suit belonged and it
had always belonged to Nirmohi Akhara who through its
Mahant and Sarbrahkar had always been managing and
receiving offerings made there at in the form of money
etc. It was also claimed in para-3 of the plaint that

Asthan of Janam Bhumi was of ancient antiquity. A map
of the property in dispute was also attached along with
the plaint and the entire premises was claimed to be
temple. The map was photo copy of plan-ll prepared by
Vakil Commissioner in Suit no.1 . However, the suit was
confined to inner courtyard and constructed portion. In
Para-4 it was stated that Niromohi Akhara possessed
the temple and none others but Hindus were allowed to
enter and worship therein. After the demolition on
06.12.1992, plaint was amended. It was asserted that
the main temple and other temples of Nirmohi Akharha
were also demolished by some miscreants, who had no
religion, caste or creed. It was also claimed in para 4-A
that Nirmohi Akhara was the panchyati Math of
Ramanandi Sect, of Vairagies and as such was a
religious denomination and the customs had been
reduced in writing on 19.03.1949 by registered deed. It
was stated that no Mohamadan (Muslim) could or ever
did enter in the temple building, i.e. entire disputed

structure. However, it was further stated that in any case
since 1934 no Muslim ever entered the premises. The
attachment under Section 145, Cr.P.C. was stated to be
illegal and having been made on wrong persuasion of
defendant No. 6 to 8, who claimed to represent the
Muslim Community. In Para-7, it was stated that due to
wrongful attachment, plaintiffs had wrongfully been
deprived of management and charge of the temple and
had been waiting for dropping of the proceedings under
Section 145, Cr.P.C. but the same were being unduly
prolonged and lingered and as no immediate termination
of proceedings under Section 145, Cr.P.C. was in sight
hence the suit had become inevitable. It was also stated
that defendants No.6 to 8 claimed to be representatives
of the Muslim community hence they were being sued in
representative capacity on behalf of entire Muslim
community. Cause of action was stated to have arisen
on 05.01.1950 when defendant No.4, City Magistrate,
Faizabad illegally took over the management and

charge of the temple along with the articles (which were
taken into the custody at the time of attachment) and
entrusted the same to the receiver defendant No.1. It
was further stated that permission of the court to file the
suit against defendants No.6 to 8 in the representative
capacity had been obtained under Order 1 Rule 8,
C.P.C. The prayer in the suit is that a decree be passed
for removal of the defendant No.1 (receiver) from the
management and charge of the said temple of Janma
Bhoomi and delivering the same to the plaintiff through
its mahant. The suit was instituted on 17.12.1959.
Suit No.4:-

O.O.S. No.4 of 1989, Regular Suit No.12 of 1961,
hereinafter referred to as Suit No.4 was filed by The
Sunni Central Board of Waqfs, U.P. and 9 Muslims of
Ayodhya, most of whom have died. Some of them have
been substituted and some not. First defendant in the
suit was Sri G.S. Visharad, plaintiff of Suit No.1, who
has been deleted after his death, second Param Hans

Ram Chander Das, third Nirmohi Akhara, fourth Mahant
of Nirmohi Akhara, fifth State of U.P., sixth Collector,
Faizabad, seventh City Magistrate, Faizabad, eighth
S.P. of Faizabad, ninth Priya Dutt (deceased), tenth
President, All India Hindu Maha Sabha, eleventh
President, Arya Maha Pradeshik Sabha, twelfth
President, All India Sanatan, Dharm Sabha, Delhi and
some others. Defendant No. 21 was Prince Anjum
Qadar, President All India Shia Conference, Registered,
Qaumi Ghar, Nadan Mohal Road, P.S. Chowk,
Lucknow. Defendants 11 to 22 were impleaded after
filing of the suit on their own applications.

In the plaint, it was stated that in Ayodhya there
existed an ancient historic mosque commonly known as
Babri Masjid built by Emperor Babar more than 433
years ago, after his conquest of India and occupation of
the territories including the town of Ayodhya. Along with
the plaint a map was attached. According to the Para-2
of the plaint, the main construction of the Mosque was

shown by letters A, B, C, D. in the said sketch map. The
map is almost a square. Neither it is on scale nor it
gives any dimensions. It is divided by dotted lines in two
parts. Eastern part is about one third of western part.
Towards south-east of eastern part a portion is
demarcated dimensions of which are given as 17' X 21'
and it is denoted by the words Chabutra Masjid. On all
the four sides of A B C D graveyard is shown. It was
further mentioned in the said para that land adjoining
the mosque on all the four sides was ancient graveyard
of the Muslims consisting of the graves of the Muslims
who lost lives in the battle between Emperor Babar and
the previous Ruler of Ayodhya; that the mosque and the
graveyard vested in Almighty; the Mosque had since the
time of its construction been used by the Muslims for
offering prayers. The Mosque and the graveyard were
stated to be situate in Mohalla Kot Rama Chander also
known as Ram Kot Town, Ayodhya. Khasara numbers
of Mosque and graveyard were given in the Schedule

attached with the plaint showing several numbers. It was
also stated that a grant was also given for upkeep and
maintenance of the mosque and in the year 1864
Britishers converted the cash Nankar grant into grant of
revenue free land situate in village Sholapur and
Bahoranpur in the vicinity of Ayodhya. In para-5, it was
mentioned that "In the mosque but outside the main
building of the mosque, there was Chabootara 17' x 21 '
on which there was a small wooden structure in the
form of a tent, which is still there." In Para-6, it was
stated that in 1885, one Mahant Raghubar Dass
alleging to be Mahant of Janam Asthan instituted a suit
(O.S. No.61/280 of 1885) against the Secretary of State
for India in Council and Mohammad Asghar, Mutwalli of
Babri Mosque, for permission to build a temple on the
Chabootara 17' x 21' mentioned in preceding paragraph
of the plaint which suit was dismissed and appeal was
also dismissed by the District Judge. In para-6 of the
plaint, it is also stated that in the sketch map filed along

with the plaint of suit of 1885, the entire building with the
exception of Chabutara 17' x 21' was admitted to be
mosque and was shown as such.

Thereafter, through amendment, paras N0.6-A to 6-
F were added in the plaint. The amendment application
was allowed on 22.12.1962. In the said paras details of
suit of 1885 and the interpretation of the judgment of the
said suit according to the plaintiff was given. It was
further stated that the suit of 1885 was filed on behalf of
the plaintiff Mahant, on behalf of Janam Asthan and on
behalf of whole body of persons interested in Janam
Sthan. Thereafter, in para-8 of the plaint it was stated
that in 1934 during a communal riot in Ayodhya, portions
of Babri Mosque were damaged, however, the damaged
portions were rebuilt and reconditioned at the cost of the
government through a Muslim thekedar. In Para-9, it
was stated that under U.P. Muslim Waqfs Act, 1936,
Commissioner of Waqfs made a detailed enquiry and

held that Babri Masjid was built by Emperor Babar and

hence was a public waqf; copy of the said report was

forwarded to the Sunni Central Board of Waqfs which

published the said report in the official gazette dated

26.02.1944. It was also stated that no suit challenging

the said report was filed by the Hindus. It was further

stated that Muslims used to recite prayers in the

mosque till 23.12.1949 when a large crowd of Hindus

entered the mosque and desecrated that by placing

idols inside the mosque. Para-11 (a), which was added

through amendment allowed on 29.11.1963, is quoted

below:

"11(a) That assuming, though not admitting,
that at one time there existed a Hindu temple as
alleged by the defendants representatives of the
Hindus on the site of which of which emperor Babar
built the mosque, some 433 years ago, the
Muslims, by virtue of their long exclusive and
continuous possession beginning from the time the
mosque was built and continuing right upto the time
some mischievous persons entered the mosque
and desecrated the mosque as alleged in the

preceding paragraphs of the plaint, the Muslims
perfected their title by adverse possession and the
right, title or interest of the temple and of the Hindu
public if any extinguished. "

Thereafter, details of FIR lodged by Sri Ram Dev
Dubey sub-Inspector, details of orders passed under
Section 145, Cr.P.C. and the details of suits, which had
been filed till then have been mentioned.

In Para-13 of the plaint, it was stated that as Sri
Priya Datt Ram was acting as receiver of the property in
dispute, hence Muslims were deprived of their right of
offering prayers in the mosque; action of the City
Magistrate was described as illegal. Thereafter, in Para-
18 of the plaint, it was mentioned that in Suit No.1
temporary injunction order had been passed restraining
the defendants of the said suit from removing the idols
from the mosque in dispute and from interfering in puja
etc. of the Hindus as a result of which Hindus were
permitted to perform puja of the idols placed by them in

the mosque but the Muslims were not allowed even to
enter the mosque. The suit was stated to be filed under
Order 1 Rule 8 C.P.C. against Hindu public and for the
benefit of entire Muslim community along with
application for permission under Order 1 Rule 8 C.P.C.
In Para-20, it was mentioned that the building in the suit
was in the possession of receiver holding for real owner
and would be released in favour of the plaintiffs in case
their suit succeeded, but if for any reason in the opinion
of the Court, recovery for possession was the proper
relief to be claimed, the plaintiffs in the alternative pray
for recovery of possession.

After demolition of the disputed building on
6.12.1992 various paragraphs were added in the plaint
through amendment applications which had been
allowed on 25 th May, 1 st August and 7 th August, all of
1995. It was stated through amendment that in violation
of order of the Supreme Court dated 15.11.1991 and of
this Court of various dates, Babri Masjid was

demolished on 06.12.1992 and thereafter an illegal
structure was created on 07.12.1992. Thereafter it was
stated that under Muslim Law, a mosque is a place
where prayers are offered publicly and it does not
require any structure and even an open space could be
a mosque, hence even after demolition the land
continued to be mosque. Cause of action was stated to
have accrued on 23.12.1949. It was also stated in para
23 that "Hindus unlawfully and illegally entered the
mosque and desecrated the mosque by placing idols in
the mosque, thus causing obstruction and interference
with the rights of the Muslims in general of saying
prayers." It was further stated that the injuries caused
were continuing injuries and cause of action was
renewed de-die-diem. The relief claimed in the suit is for
a declaration to the effect that the property indicated by
letters A, B, C, D in the sketch map attached to the
plaint is public mosque commonly known as Babri
Masjid. The next prayer is that in case in the opinion of

the Court delivery of possession is deemed to be the
proper remedy, a decree for delivery of the possession
of the mosque in suit by removal of the idols etc. be
passed in plaintiff's favour against the defendants. One
more prayer was added through amendment allowed on
25.05.1995 to the effect that statutory receiver be
commanded to handover the property in dispute by
removing the unauthorised construction erected
thereon.
Written statements in Suit No.4:-

Various defendants filed written statements. Two
joint written statements were filed by defendants No.1 &
2, Gopal Singh Visharad and Ram Chandra Das. They
pleaded that plaintiffs had no right to make the
defendant contest the suit in a representative capacity
(Para-19). In Para-23 it was stated that suit was
hopelessly barred by time and the Muslims had not
been in possession of the property in dispute since 1934
and earlier. Under additional pleas, it was stated that

Muslims were never in possession of the temple called
Ram Janam Bhoomi and if ever they were in possession
of the so called Babari Mosque, their possession ceased
thereon in 1934 and since then Hindus were holding
that temple in their possession. In Para-26, it was stated
that the temple was a public charitable institution and
did not belong to any sect, group, math or individual or
Mahanth or any Akhara. Bar of limitation was again
pleaded in Paras No. 27 & 28. In the second joint written
statement filed by defendants No. 1 & 2, which appears
to have been filed after amendment of the plaint, most of
the pleas related to the Waqf Act and action of Waqf
Commissioner recording the property in dispute as Waqf
property was termed as illegal. It was also denied that
the judgment in the suit of 1885 operated as res-
judicata. Additional written statement was also filed
which also related to Waqf Act and Government of India
Act, 1935. The replication was filed by the plaintiffs.

Another joint written statement was filed on behalf

of Nirmohi Akhara and its Mahanth Ragunath Das,
defendants No. 3 & 4. They took the same pleas which
they had taken in their suit (Suit No. 3). They denied that
Babar had made any conquest or occupation of any
territory in India at the time alleged in the plaint or had
constructed a mosque at the disputed place. Existence
of graveyard was also denied. After acquisition of
property in dispute including some adjoining property,
total area 2.7744 acres by State government in the year
1991, assertions in that regard were also made in the
written statement through amendment. In Para 13-C, it
was stated that temples of Nirmohi Akhara etc. were
demolished by some miscreants on 06.12.1992, who
had no religion, cast or creed; and that Ram
Chabootara whose existence was judicialy recognised in
1885 was in possession of Nirmohi Akhara. Along with
the written statement a sketch map of the property in
dispute was attached wherein the constructed portion
was shown as main temple. It was stated that no

Mohmmadan ever entered the disputed premises at
least since 1934. Additional written statement was also
filed on behalf of defendants No. 3 & 4 and replication
was filed to that. In one of the written statements filed on
21.08.1995 details of the suits in between different
persons claiming to be Mahanths of Nirmohi Akhara
were given.

Defendants No. 5 to 8 (State and its authorities) did
not propose to contest the suit and they requested that
they might be exempted from the cost. Receiver Priya
Datt Ram, defendant no. 9 also filed written statement
only admitting that small temple with idols, which was
referred to as tent shape structure in the plaint belonged
to Nirmohi Akhara.

Hindu Mahasabha, defendant No. 10 also filed
written statement denying everything and stating that
passing of U.P. Waqf Act of 1935 (Sic. U.P. Muslim Act
1936) was an atrocity committed by the British Rulers
and further stating in para 14 that on regaining

independence original Hindu Law had revived and
Constitution itself having been imposed by
misrepresentation was voidable ab-initio (sic). It has
also been stated that the property in dispute had always
been in possession of Hindus. Thereafter details of
acquisition by the Government of India had been
mentioned. Various other pleas were also taken and
replication to that was also filed by the plaintiffs.
Additional written statement was also filed by defendant
No. 10. In para-2 thereof it was stated that Muslim Law is
also subject to the provisions of the Constitution and it
is the Constitution, which is supreme.

Defendants No. 13 & 14, Baba Abhiram Das and
Pundrik Misra also filed written statement. Baba
Abhiram Das thereafter died and was substituted by his
chela Dharam Das under order of Court dated
26.04.1968. In the said written statement also it was
pleaded that if ever Muslims were in interrupted
possession of the falsely called Babri Mosque their

possession ceased thereon in 1934 and since then the

temple was in possession of the Hindus and Muslims

had not offered any prayer therein. It was also stated

that the temple did not belong to any sect, group, math

or individual or Mahanth or any Akhara. Plea of bar of

limitation had also been taken. It was also pleaded that

Britishers reclaimed the entire land in Oudh/Ayodhya

and thereafter no fresh grant was made in respect of the

property in dispute, hence rights of Muslims, if any,

stood lost. Action of Commissioner, Waqf was also

challenged.

Dharam Das chela of Baba Abhiram Das after his

substitution at the place of deceased Abhiram Das also

filed written statement. It was asserted in Para 11 -A

thereof as follows:

"The act of installation of the Deity of
BHAGWAN SRI RAMA under the central dome of
the building at Sri Ram Janma Bhumi, in the form
of the Idol of BHAGWAN SRI RAM LALA on Paush
Shukla 3 of the Vikram Samvat 2006 by His

worshippers, led by among others, the answering
defendants Guru Baba Abhiram Das was not a
mischievous act but a perfectly lawful exercise of
their fight by the Hindus to worship the Deity. "

The date corresponds to 23 rd December, 1949.
(Baba Abhiram Das in his written statement had not
stated that the idol had been installed under the central
dome in the early hours of 23.12.1949 by him and some
other persons). In Para-13 of the written statement filed
by Dharam Das, it was stated that after attachment and
appointment of Priya Datt Ram as receiver to manage
the worship of the Deity of Bhagwan Sri Ram Lala
Virajmaan under the central dome, Muslims were
prohibited from entering upon the building premises.
Plea of bar of limitation was also taken. In Para-25 it
was mentioned that an ancient temple of Maharaja
Vikramditya's time existed at Sri Rama Janma Bhumi,
and that was demolished by Mir Baqi. In Para-26, it was
stated that the premises in dispute is the place where

Bhagwan Sri Ram manifested himself in human form as
an incarnation of Bhagwan Vishnu according to the
tradition and faith of the Hindus. The written statement
of Dharam Das is quite a long one containing several
other pleas also to the effect that mosque even if
constructed was against the principles of Muslim Law
and that attempt to construct mosque did not completely
succeed. In Para-27, it was stated that as the story
goes, whatever was constructed during the day fell
down during the night, and it was only after making
certain material concessions in favour of the Hindus for
the continued preservation of the place as a place of
Hindu worship, that the construction of the three-domed
structure was somehow completed by Mir Baqi.
Additional written statement was also filed by Dharam
Das after demolition of the premises on 06.12.1992 to
the effect that what was demolished was not a mosque
(Babari Mosque).

Defendant No. 17, Ramesh Chandra Tripathi also

filed additional written statement. However, there is no
other written statement on record. It was stated in the
said additional written statement that idols were not
placed in the night of 22 nd /23 rd December, 1949 but
were in existence from times immemorial and what was
demolished on 06.12.1992 was not a mosque and the
Babar was invader and had no legal authority to
construct any Masjid.

Mahanth Ganga Das, defendant No. 18 also filed
written statement supporting the case of defendant
No.3, Nirmohi Akhara.

Written statement on behalf of defendant No. 20,
Madan Mohan Gupta, convener of Akhil Bhartiya Sri
Ram Janam Bhoomi Punarudhar Samiti, Bhopal was
also filed. He got himself impleaded by filing application,
which was allowed on 23.10.1989. Sri P.N. Mishra,
learned counsel, argued the case on his behalf for
about 15 days and also filed detailed written arguments.

It was pleaded in the written statement of defendant

No. 20 that Babar neither demolished any temple nor
constructed any mosque and Britishers wrongly gave
currency to the said idea. It was also stated that in
case there had been any mosque then Tulsi Das or
Beveridge or Laiden should have mentioned it. It
was also stated that Ayodhya Mahatim was also
silent about any mosque. Further statement was that
until 1855 there was no mosque, entire premises in
dispute was temple. In the alternative it was pleaded
in para-41(6) that even if Babar constructed mosque,
it was no mosque in the eye of Muslim Law. In the
same para, it was also mentioned that subsequently
Aurangzeb also desecrated the shrines of Ayodhya.
However, the last reference was not related to the
premises in question. Reference to Babar in respect
of demolition of temple was also made in paras 42,
47, 49 of the written statement and para-4 of
additional written statement.

Suit No.5

This suit was filed by Bhagwan Sri Ram Birajman at

Sri Ram Janam Bhoomi Ayodhya, Asthan Sri Ram
Janam Bhoomi, Ayodhya and Sri Deoki Nandan
Agarwala, senior advocate and retired Judge, High
Court, resident of Allahabad. Plaintiffs No.1 & 2 were
stated to be represented by next friend Deoki Nandan
Agarwala, plaintiff No. 3. Sri Deoki Nandan Agarwala
died and was substituted by Sri T.P. Verma. Thereafter,
he expressed his inability to continue to act as next
friend of plaintiffs No.1 & 2 due to his ill health and age
hence under orders of Supreme Court Sri Triloki Nath
Pandey has been appointed as next friend of plaintiffs
No.1 and 2 by this Court through order dated
18.03.2010. Defendants in the said suit are Rajendra
Singh son of Gopal Singh Visharad, the original plaintiff
of Suit No.1. Defendant No. 2 is Param Hans Mahant
Ram Chandra plaintiff of Suit No. 2 (which has now been
got dismissed as withdrawn), defendant No. 3 is Nirmohi

Akhara, plaintiff of Suit No. 3. Defendant No. 4 is Sunni
Central Board of Waqfs. Defendants No. 5 & 6 are
Mohammad Hashim and Mohammad Ahmad. In total,
there are 27 defendants including all the parties of
previous suits. The other defendants include State of
U.P., Collector, City Magistrate and S.S.P., Faizabad,
Presidents of All India Hindu Mahasabha, All India Arya
Samaj and All India Sanatan Dharma Sabha, Ram
Janam Bhoomi Nyas, Shiya Central Board of Waqfs.
Some defendants have been deleted.

In para-1 of the plaint it is stated that both the
plaintiffs No.1 & 2 are juridical persons and plaintiff No. 3
is a Vaishnava Hindu and seeks to represent the Deity
and the Asthan as a next friend. In Para-2, it is stated
that Ram Janam Bhoomi is too well known at Ayodhya
and it does not require any description for purposes of
identification of the subject matter of dispute, however
for greater precision, two site plans of the building
premises and of the adjacent area known as Sri Ram

Janam Bhoomi, prepared by Sri Shiv Shankar Lai as
Commissioner in Regular Suit No.2 of 1950 (Suit No.1)
and his report are being annexed as Annexures I, II &
III. Thereafter, history of earlier suits has been given.
Thereafter, it has been stated that through orders dated
04.08.1951 and 06.01.1964 all the four suits were
consolidated and Suit No. 12 of 1961 (Suit No.4) was
made the leading case. Thereafter, it has been stated
that interim injunction order was passed in Suit No.1 on
16.01.1950 and 19.01.1950, which was confirmed on
03.03.1951. Thereafter, it has been mentioned that 25
years have passed since framing of the issues but
hearing has not commenced. Thereafter, it is mentioned
that expectation was that the suits would be decided
earlier and darshan and puja would be permitted from
near the Deities and not from behind the barrier.
Thereafter, it is mentioned in Para-13 that through order
of District Judge, Faizabad dated 01.02.1986, barriers,
locks and brick-grill wall were removed. Thereafter, it is

mentioned that Plaintiff Deities and their devotees are
extremely unhappy with the prolonged delay of the
hearing of the suits and that devotees of the Plaintiff
Deities are desirous of having a new temple
constructed. Thereafter, it is mentioned that a trust has
been created on 08.12.1985, which was registered on
the same day through which Jagadaguru

Ramanandacharya Swami Shivaramacharya was
declared as first trustee for life and other trustees were
also appointed including Paramhans Ram Chandra Das.
It was stated that plaintiff No. 3 was also appointed as
trustee. Thereafter in Para-18 of the plaint, it is
mentioned that the earlier suits were inadequate as
neither presiding Deity nor Asthans, i.e. plaintiffs No.1 &
2 of the suit were impleaded in the earlier suits, hence
fresh suit is being filed. It is also stated that events
which have occurred during last four decades and many
material facts and points of law require to be pleaded
from the view point of the Plaintiffs Deities. Thereafter, it

is stated that the place itself being birth place of Lord
Ram is object of worship as Deity (para-20.) Illustration
of Kedarnath has been given where there is no idol and
where an undulating surface of stone is worshipped as
Deity. Next example given is of Vishnupad Temple at
Gaya, which does not contain any idol and said place is
believed to have born the footprints of Bhagwan Vishnu,
hence it is worshipped as Deity. Thereafter, it has been
stated that the place, Sri Ram Janam Bhoomi is
worshipped as Deity, which is a juridical person and the
actual performance of puja of such an immovable Deity
by its devotees is not essential for its existence as a
Deity (para-22 of the plaint). In Para-23, it is mentioned
that there was an ancient temple of Maharaja
Vikramditya's time at Sri Ram Janam Bhoomi, which
was destroyed partly by Mir Baqi, a commander of
Baber's hordes and an attempt was made to raise a
mosque there and for the construction of the mosque
almost entire material used was of the temple including

its kasauti pillars with figures of Hindu Gods and

Goddesses carved on them. Thereafter, it is mentioned

that neither there is any minaret nor place for storage of

water for Vazoo in the alleged mosque in question. It is

also stated that many battles were fought by the Hindus,

the last one of which occurred in 1855. Thereafter,

reference to Nevill's Faizabad Gazetteer, 1928 Edition

has been made and the following portion thereof has

been quoted in para-23:

"It is locally affirmed that at the time of the
Musalman conquest there were three important
Hindu shrines at Ayodhya and little else. These
were the Janmasthan temple, the Swargaddwar
and the Treta-ka-Thakur, and each was
successively made the object of attention of
different Musalman rulers. The Janmasthan was in
Ramkot and marked the birthplace of Rama. In
1528 Babar came to Ayodhya and halted here for a
week. He destroyed the ancient temple and on its
site built a mosque, still known as Babar 's mosque.
The materials of the old structure were largely
employed, and many of the columns are in good

preservation, they are of close-grained black stone,
called by the natives kasauti, and carved with
various devices. Their length is from seven to eight
feet, and the shape square at the base, centre and
capital, the rest being round or octagonal. The
mosque has two inscriptions, one on the outside
and the other on the pulpit, both are in persian and
bear and date 935 Hijri. "

(Exactly same description is given in Nevill's
gazetteer of 1905)

Thereafter, further portion of the Gazetteer has
been quoted regarding the open fight of 1855 in respect
of Hanumaan Garhi, which is at a distance of less than a
kilometer from the premises in dispute. Thereafter, in
Para-24, which consists of several sub-paragraphs, it
has been stated that the structure like the disputed one
could not be mosque even according to the Muslim Law.
In Para-26, it is mentioned that at any rate no prayers
have ever been offered in the building in dispute.
Thereafter mention has been made about riot of 1934

when substantial parts of the domes of the building were

destroyed and thereafter rebuilt by the government. It

has further been stated in Para-26 that thereafter, no

one dared to offer Namaz therein. Thereafter, it has

been stated in Para-27 of the plaint as follows:

"That after independence from the British Rule,
the Vairagis and the Sadhus and the Hindu public,
dug up and levelled whatever graves had been left
in the area surrounding Sri Rama Janma Bhumi
Asthan and purified the place by Akhand Patha and
Japa by thousands of persons all over the area.
Ultimately, on the night between the 22 nd 23 rd
December, 1949 the Idol of Bhagwan Sri Rama
was installed with due ceremony under the central
dome of the building also. "

Thereafter, lodging of FIR on 23.12.1949 and
initiation of proceedings under Section 145, Cr.P.C.
have been mentioned. Details of different receivers have
also been mentioned. In Para-29 of the plaint, it has
been mentioned that Plaintiff Deities were not made
parties to any earlier proceedings. Thereafter, it has

been mentioned in Paras 35-H to 35-U, added under
different orders of Court, on amendment applications,
passed in 1995, that a movement was initiated for
construction of new temple building and thereafter fact
of demolition on 6.12.1992 has been mentioned.
Thereafter, reference has been made to the judgment of
the Supreme Court reported in Dr. M. Ismail Farooqi
Vs. Union of India, 1994 (6) S.C.C. 360. In Para-36, it
has been stated that cause of action for the suit has
been accruing from day to day particularly since recently
when plans of Temple reconstruction are being sought
to be obstructed by violent action from the side of
certain Muslim communalists. The prayer in the suit is
for a decree of declaration to the effect that the entire
premises of Sri Ram Janama Bhoomi at Ayodhya as
described and delineated in Annexures I, II and III
belong to the Plaintiff Deities and for a perpetual
injunction against the defendants prohibiting them from
interfering with, or raising any objection to or placing any

obstruction in the constructin of the new Temple building
at Sri Ram Janama Bhoomi Ayodhya, after demolishing
and removing the existing buildings and structures etc.
Annexures I, II & III to the plaint are two maps and the
report of Sri Shiv Shanker Lai, who was appointed as
Commissioner in Suit No.1 to inspect and give report in
respect of the building in dispute and the adjoining
locality. The report is dated 19.05.1950. The first map is
of the disputed premises and the second map is of the
disputed premises along with the adjoining locality.

Some important stages of the suits and

related matters

Consolidation of Suits and their
withdrawal to High Court:-

State of U.P. filed an application in 1987 in this

High Court under Section 24, C.P.C. seeking withdrawal

of the four suits, which were pending at that time before

Munsif Sadar Faizabad to this High Court. By order

dated 06.01.1964 passed by Civil Judge, Faizabad, the
four suits had already been consolidated and Regular
Suit No. 12 of 1961 (Suit No.4) had been made the
leading case, on the agreement of all the parties. After
increase in pecuniary jurisdiction of Munsif the suits
were transferred to the Court of Munsif Sadar, Faizabad.
The transfer/withdrawal application was registered as
Civil Miscellaneous Case No.29 of 1987. Meanwhile,
Suit No. 5 had been filed before civil judge Faizabad on
01.07.1989 and an application for transfer/withdrawal of
the said suit by its plaintiffs had also been filed in this
High Court in the form of Civil Miscellaneous Case
No. 11 of 1989. Both the transfer applications/
miscellaneous cases were disposed of on 10.07.1989.
The suits were withdrawn to the High Court and directed
to be heard by a Full Bench.

Permission to sue under Order 1 Rule 8. C.P.C. and
as guardian:-

In Suit No. 3, application under Order 1 Rule 8,

C.P.C. was allowed on 21.12.1959 and plaintiff was
permitted to sue Muslim parties in the suit, i.e.
defendants No.6, 7 & 8 in their representative capacity
on behalf of entire Muslim community. In suit No. 4 on
08.08.1962, an order was passed permitting the
plaintiffs to sue in their representative capacity on behalf
of the Muslims and defendants No. 1 to 4 were also
permitted to be sued in the representative capacity on
behalf of Hindus.

Suit No.5 was filed on 01.07.1989 with an
application by plaintiff No. 3 to permit him to sue on
behalf of plaintiffs No.1 & 2 as their next friend. On the
same date, the application was allowed and it was also
directed that until some other person filed any objection,
plaintiff No. 3 was permitted to conduct the suit as next
friend of plaintiffs No.1 & 2. An application to recall the
said order was rejected by this Court on 20.04.1992 on
the ground that some of the defendants particularly
Muslim parties had objected that plaintiff No. 3 could not

i I

application for permission to sue any defendant(s)

represent plaintiffs No.1 & 2, hence that point/ issue
might be decided either as preliminary issue or along
with final judgment in the suit.

However, Suit No. 5 is not representative suit. No

representative capacity was ever filed. There is no such
assertion in the plaint also.

In Suit No.1, defendants No.1 to 5 (Muslim parties)
filed an application that plaintiff be directed to sue in
representative capacity (on behalf of all Hindus). The
plaintiff opposed the application and stated that he was
suing in his personal capacity. The Civil Judge through
order dated 27.10.1951 expressed the opinion/ gave
advice to the plaintiff to sue in representative capacity
but rejected the application of the defendants on the
ground that plaintiff could not be compelled in that
regard.
Temporary Injunction:-

In suit No.1, an ad-interim injunction order was

passed on 16.01.1950 to the effect that "issue interim

injunction in the meanwhile as prayed". It was modified

on 19.01.1950. The order of 19.01.1950 is quoted

below:

"The opposite parties are hereby restrained by
means of temporary injunction to refrain from
removing the idols in question from the site in
dispute and from interfering with puja etc. as at
present carried on. The order dated 16.01.1950
stands modified accordingly. "

The temporary injunction order was confirmed by a
detailed order on 03.03.1951 after hearing both the
parties and was directed to remain in force until the suit
was disposed of.

Appeal under Order 43 Rule 1(r), C.P.C. filed from
the said order being F.A.F.O. No. 154 of 1951 was
dismissed by this Court on 26.04.1955.
Receivers: -

Sri Priya Datt Ram, who had been appointed as
receiver in proceedings under Section 145, Cr.P.C.

through order dated 29.12.1949 died on 08.08.1970. He
remained receiver until his death. The Magistrate,
thereafter, through order dated 20.10.1970 appointed
Sri K.K. Ram Varma as receiver. Thereafter, different
parties in the suits filed applications for appointment of
civil court receiver. Once Sri Shram Mishra was
appointed as receiver by the Civil Court through order
dated 17.11.1970, however that order was challenged
through miscellaneous appeal, which was allowed and
matter was remanded. Thereafter, on 18.03.1975, Civil
Judge, Faizabad appointed Sri Madan Mohan Dubey as
receiver. That order was also challenged (in F.A.F.O.
no.181 of 1975 renumbered as F.A.F.O. 17 of 1977)
and matter was again remanded through order dated
23.07.1987. However, due to interim orders passed in
the aforesaid appeals, Sri K.K. Ram Verma continued
to act as receiver. After decision of last appeal some
other receivers were also appointed until 06.12.1992
when constructed portion of the premises in dispute was

demolished. Thereafter under order of the Supreme
Court given in the judgment reported in Dr. M. Ismail
Farooqi Vs. Union of India, 1994 (6) SCC 360, Union
of India took over as statutory receiver.
Opening of lock:-

Until 31.01.1986, the position which was brought in
existence on 23.12.1949 was continuing and two or
three Pandits were deputed to perform religious rites like
Bhog and Puja etc. and general public was permitted to
have darshan from beyond the brick-grill wall. It is
mentioned in the diary/ report of Mr. K.K.K. Nayar, D.M./
D.C. Faizabad dated 25.12.1949, 5 p.m. & 7.20 p.m.
and dated 27.12.1949, 9.30 a.m. at two places that his
plan was to get the property in dispute attached under
Section 145, Cr.P.C. and he had with great difficulty
persuaded the Sadhus and general Hindus and they
had agreed that except two or three priests no one will
go near the newly placed idol and general Hindus will
have darshan from beyond the grill/ railing until civil

court decided the matters of right and title.

One Umesh Chand Pandey, advocate (who was
neither a party till then nor appearing for any of the
parties in any of the suits) filed an application on
25.01.1986 that public must be permitted to have
darshan from inside and locks placed on brick-grill wall
should be removed. At that time, miscellaneous appeal
against order of the Civil Judge, Faizabad appointing Sri
Madan Mohan Dubey as receiver (FAFO No. 17 of 1977)
was pending in this High Court and the file of the leading
case, i.e. Suit No.4 had been summoned therein. In the
aforesaid FAFO (which had initially been filed at
Allahabad in the form of FAFO No.181 of 1975),
operation of order dated 18.03.1975 appointing Sri M.M.
Dubey as receiver had been stayed. However it
appears that at Faizabad every one was under
confusion that proceedings of the suit had been stayed.
In any case as the file of leading case had been
summoned in the aforesaid FAFO, hence proceedings

were practically held up. On the application of Sri
Pandey, the learned Munsif where the suits were
pending passed an order on 28.01.1986 to the effect
that order could be passed on the file of the leading
case i.e. R.S. no. 12 of 1961 and as the file of the said
suit had been summoned by the High Court in F.A.F.O.
no. 17 of 1977 hence the application should be put up
on the next date already fixed. Against this order, appeal
was filed before the District Judge, on 31.01.1986 (Misc
appeal no. 8 of 1986).

In the appeal only surviving defendants no. 6 to 9
i.e. State of U.P., Deputy Commissioner, City Magistrate
and S.P. Faizabad were made parties. Plaintiff as well
as defendants 1 to 5 had already died and no
substitution application was pending in the suit.
Mohamad Hashim one of the plaintiffs in suit no. 4 came
to know about filing of the appeal hence on 01.02.1986
he filed an application for being impleaded as party in
the appeal. The appellant opposed the said application.

The learned District Judge Sri K.N. Pandey held that
Mohamad Hashim was neither a necessary nor a proper
party and rejected his application on 01.02.1986 itself.
Thereafter, appeal was allowed on the same date i.e. on
01.02.1986. In the judgment it is mentioned that D.M.
and S.P. both were present in Court and D.M. had
clearly stated that there were two locks on the brick grill
wall/railing. It is further mentioned that D.M. and S.P.
both clearly admitted that if the locks were opened still
there would be no problem to maintain peace. The
statement of D.M. and S.P. given in Hindi was quoted in
Roman in the judgment dated 01.02.1986 by the
learned District Judge. Ultimately, the learned District
Judge held that keeping both the doors in the grill/
railing was unnecessary, irritant to the applicant and the
other members of the public and it was an artificial
barrier in between the idols and the devotees.
Ultimately, appeal was allowed and respondents were
directed to open the locks on the gates O-P in the brick

and grill/railing. It has been stated in the writ petition
challenging the said order (writ petition no. 746 of 1996
which is also being decided along with these suits) that
the final judgment in the appeal was passed at 4.15 pm.
Within minutes the locks were opened. The opening of
the lock catapulted the dispute at the national (rather
international) level. Prior to that no one beyond Ayodhya
and Faizabad was aware of the dispute. The order
dated 01.02.1986 triggered a chain reaction leading to
the demolition of the structure on 06.12.1992.

As the suits itself are being finally decided hence
there is no need to analyse minutely the correctness or
otherwise of the order dated 01.02.1986 which is only
an interim order. All interim orders come to an end with
the suit. However, the manner in which the order was
passed requires to be considered and analysed.
Learned counsel for the petitioner in writ petition
directed against the said judgment (dated 01.02.1986)
has also argued that even though with the decision of

suit writ petition will become infructuous and in any case
there did not remain much to be decided in the writ
petition after 06.12.1992, however, the argument
regarding utter disregard of procedure in passing the
said order should be considered by this Court.

There were following glaring defects in the
procedure adopted in the appeal and the order passed
therein:-

(a) The order of the Munsif dated 28.01.986 was
not appealable absolutely nothing had been
decided thereby.

(b) Without the file of the leading case no order
could be passed either by the Munsif or by the
District Judge.

(c) Plaintiff of suit no.1 in which the impugned order
was passed had died and no substitution
application had been filed till then. Accordingly the
suit was dormant and nothing could be done
therein.

(d) Impleadment application was wrongly rejected
by the appellate court as a result of which there was
no one to oppose the appeal as District Magistrate
and S.P. categorically supported the appeal.

(e) Appeal by Sri Umesh Chand Pandey who was
not a party in the suit was not maintainable. It is
quite interesting to note that a person who was a
party in the connected suit which was leading case
was considered to be neither necessary nor proper
party by the District Judge, however, Mr. Umesh
Chand Pandey who was not a party in the suit was
held entitled to file appeal which was also allowed.

(f) The learned district Judge in his order dated
01.02.1986 did not say that how appeal by an
stranger or application by him before the trial Court
was maintainable. (It has already been noticed that
suit no.1 was not in the representative capacity).

(g) There was absolutely no occasion to show such
undue haste. The appeal was filed on 31 st January

1986 and was allowed on the next day i.e. 1 st

February 1986. At least the reason for this extreme

haste is not mentioned in the judgment.

It is a sound principle that not only justice must be

done but it must also appear to be done. Before passing

the judgment dated 01.02.1986 the learned District

Judge first buried the second limb of the principle

(appearance of justice) very deep. Probably the learned

judge was of the view that he would not be able to pass

the order (which obviously, according to him, must have

been a just order) in case he bothered about the

appearance of justice being done. This obviously shook

the faith of the parties affected by the said judgement

which was the real tragedy.

Acquisition by State of U.P.:-

State of U.P. acquired the premises in dispute
along with some adjoining area (total area 2.77 acres)
for 'development of tourism and providing amenities to
Pilgrims in Ayodhya' through notifications under

Sections 4 & 6 of Land Acquisition Act dated 07.10.1991
and 10.10.1991 respectively. Said acquisition was
challenged through six writ petitions leading one being
writ petition no. 3540 (MB) of 1991 Mohd. Hashim vs.
State of U.P. and others. In the said writ petitions,
interim order was passed in October, 1991 staying the
operation of the notifications. Ultimately, writ petitions
were allowed by a full bench on 11.12.1992 (after five
days of the demolition of constructed portion of the
premises in dispute) and notifications were quashed
accepting the arguments of most of the petitioners that
the purpose of notifications was destruction of the
mosque and construction of a temple hence they were
malafide.
Demolition:-

As stated in the introduction part on 06.12.1992, a
very large crowd of Hindus (Kar Sewaks) gathered at
the spot and demolished constructed portion, boundary
wall and Ram Chabutra etc. situated in the premises in

dispute in spite of the interim orders passed by Supreme
Court and this Court and makeshift structure/ temple
was constructed at the place which was under the
central dome and the idol was replaced there.

The demolition caused almost unprecedented
communal disturbance and divide. In independent India
only the frenzy and madness which was unleashed
immediately after independence and partition of the
country could surpass the magnitude of the situation
triggered by the demolition. The demolition was by
design, as asserted by some, or it was sudden,
spontaneous and unplanned and was a result of out
burst of pant up feelings of the mob which had gathered
there for kar seva (religious service), as asserted by
others? This controversy is foreign to these suits and is
not covered by any of the issues, hence nothing need
be said in this judgment regarding this aspect.

One may not fully agree with Marx in his
interpretation of history relating that only and only with

economics. However, it will be perilous to deny even
partial truth in the said approach. At the time of the
demolition our economy was in shatters. The physical
mortgaging of India's gold reserves in 1990 epitomized
the bankruptcy of an economic system.' (Swapan
Dasgupta in The Telegraph dated 17.9.2010). The
rupee had drastically been devalued twice in quick
succession.

Those who are interested in socio economic
interpretation of history may recall that about two years
before recommendations of Mandal Commission for
reserving 27% government jobs for O.B.C. had been
accepted and implemented.

However, it goes to our credit that we the people of
India showed remarkable resilience and disproved the
doomsday predictors. Neither the misplaced ecstasy
nor the abject despondency survived long. (In this
process some role of revival of economy can not be
ruled out). The demolition did not prove Indian

equivalent of storming of the Bastille and it remained a
turning point in Indian history when history refused to
turn. (Again from same editorial page article of S.
Dasgupta.) We could again sing with fresh charm Sare
jahan Se Achcha Hindustan hamara, particularly its
following verses.

fl^t t ^T, cfcH t fWf^cri mK\ I I
^TFT— 3TT— f^TO— 3TT— TPFTT ^T fe ^ wt ^ I
3R cT^ W? t in^T ^TFff-f^Tf mK\ I I

^Tf^fr W t ^f^T ^-^TfTT ^WT I I"

(also quoted by Justice R.S. Dhavan in A.C. Datt vs.
Rajiv Gandhi AIR 1990 Allahabad 38)

Acquisition by Central Government: -

Thereafter, Central Government acquired a large
area of about 68 acres including the premises in dispute
through Acquisition of Certain Areas at Ayodhya Act,

1993. (Earlier an ordinance by same name had been
issued). Simultaneously, reference was also made by
the President of India to the Supreme Court under
Article-143 of the Constitution of India. Reference was to
the following effect:

"Whether a Hindu temple or any Hindu

religious structure existed prior to the construction

of the Ram Janam Bhoomi and Babari Masjid

(including the premises of the inner and outer

courtyards on such structure) in the area on which

the structure stands or not?"

Supreme Court decided the matter through

judgment reported in Dr. M. Ismail Farooqi Vs. Union

of India, 1994 (6) SCC 360. Supreme Court refused to

answer the reference. Supreme Court struck down

Section 4(3) of the Acquisition Act, 1993 which had

directed abatement of all pending suits, as

unconstitutional and invalid and upheld the validity of the

remaining Act. The result was that these suits, which

had abated in view of the aforesaid provision of the
Acquisition Act 1993 stood revived. It was also directed
that the vesting of the disputed area described as inner
and outer courtyard in the Act (in dispute in these suits)
in the Central Government would be as the statutory
receiver with the duty for its management and
administration requiring maintenance of status quo. It
was further directed that the duty of the Central
Government as the statutory receiver would be to
handover the disputed area in accordance with Section
6 of the Act in terms of the adjudication made in the
suits for implementation of the final decision therein as it
was the purpose for which the disputed area had been
so acquired. It was also clarified that disputed area
(inner and outer courtyards) alone remained the subject
matter of the revived suits. The claim of Muslims
regarding adjoining alleged graveyard is therefore not
left to be decided.

Impleadment applications rejected :-

The impleadment applications filed by the following persons for
their impleadment and impleadment of Union of India were rejected on
the dates mentioned against their names.

SI.No

Suit No.

Moved on

Moved by

Rejected on

o.o.s.

1989

No.4 of

04.12.1990

Sri Brahmajeet S/o Nihal

17.01.1991

O.O.S.
1989

No.4 of

20.01.1995

Maharshi Awadhesh President,
Rashtriya Party

25.05.1995

O.O.S.
1989

No.4 of

13.02.1995

Maharshi Awadhesh

02.08.1995

O.O.S.
1989

No.4 of

03.01.1995

President, R.N. Nationalist party and
Avami Leeg of Nation

28.03.1995

O.O.S.
1989

No.4 of

09.01.1990

Hindu Mahasabha to implead Union
of India as Party

09.01.1990

O.O.S.
1989

No.4 of

12.08.1991

Maharshi Awadhesh

30.09.1991

O.O.S.
1989

No.4 of

31.03.1992

Maharshi Awadhesh

20.04.1992

O.O.S.
1989

No.4 of

02.02.1992

Gopi Nath

15.04.1992

O.O.S.
1989

No.4 of

31.03.1992

S.C. Pandey Adv.

31.03.1992

O.O.S.
1989

No.4 of

31.03.1992

Maharshi Awadhesh

07.04.1992

O.O.S.
1989

No.4 of
No.3 of
No.5 of

05.02.1993

Moved by Different Parties at various
dates for impleadment of Union of
India as Parties in Different Suits
pending before Hon'ble Court

25.05.1995

In forty pages
and minority
view in
sixteen pages

18.01.1995

15.01.1993
03.01.1995

03.01.1995
25.07.1989
12.12.1994

O.O.S.
1989

No.5 of

13.12.1990

Buddhist

17.01.1991

O.O.S.
1989

No.5 of

11.08.1989

Molana Sajjad Ahmad

19.08.1989

O.O.S.
1989

No.5 of

14.08.1989

Farooque Ahmad

14.08.1989

O.O.S.
1989

No.5 of

25.08.1989

Sri Prem Chandra Gupta

23.10.1989

O.O.S.
1989

No.5 of

25.08.1989

Mandir Raksha Committee & Sri Bal
Krishna Sharma

23.10.1989

O.O.S.
1989

No.5 of

06.05.1992

Maharshi Awadhesh founder
President of Rashtriya Party

07.05.1992

O.O.S.
1989

No.5 of

09.10.1995
for

transposing
Defendants
2, 14,21 as
Plaintiffs
No.4, 5 & 6
respectively

Sri Ram Janam Bhumi Nyas through
Ashok Singhal

19.03.1996

O.O.S.
1989

No.5 of

07.10.1996

Sri Ismail Farooqui

27.11.1996

O.O.S.
1989

No.3 of

25.08.1989

Sri Prem Chandra Gupta

23.10.1989

O.O.S.
1989

No.3 of

25.08.1989

Sri Sri Mandir Raksha Samiti

23.10.1989

O.O.S.
1989

No.1 of

21.04.2003

Sri Akhil Bhartiya Chhatriya
Mahasabha

29.04.2003

O.O.S.
1989

No.5 of

18.02.2003

Sri Rajeshwari Sri Sita Ram Waqts
through Manager Kunwar Shivendra
Pratap Sahi

18.02.2003

O.O.S.
1989

No.4 of

04.04.2003

Buddha foundation through Udai Raj

07/04/03

O.O.S.
1989

No.4 of

07.04.1978

Sri Ram Janambhumi Dharmarth
Prabandhkari 'Samiti' Sri Ram
Janambhumi Ramkot Ayodhya and
Sri Raghunandan Saran

09.12.1991

O.O.S.
1989

No.4 of

16.04.1988

Sarpanch Ramswaroop Das Chela
Raghubar Das, panch Bhaskar Das
and Rajaram

09.12.1991

O.O.S.
1989

No.4 of

08.11.1988

Kashiteesh Chandra Mishra

19.11.1988

O.O.S.
1989

No.4 of

10.05.1989

Sri Ram Janambhumi Sewa Samiti

23.10.1989

O.O.S.
1989

No.4 of

26.08.1996

Dr. Mohd. Ismail Farooqui (Order in
6 pages)

27.11.1996

19.11.1988
24.12.1988

Sri Chhitij Chandra Mishra Ad.
Sri Ashok Kumar Pandey Ad.
(for impleadment)

09.01.1989

(lll-ADJ,

Faizabad)

27.01.1969

Sri R.N. Verma and Sri Har Prasad

30.04.1969

25.10.1968

Mahant Raghubar Prasad

30.04.1969

30.01.1971

Sri Prem Singh

Sri Uma Dutt Mishra

13.02.1971

27.03.1989

Sri Ramjan Armatandavi

09.12.1991

20.02.1988

Sri Ram Bhadra Pathak

09.12.1991

Issues:-

Issues had already been framed when the suits
were transferred to this Court, however, some issues
were reframed thereafter. The most important point to
be decided, particularly after the judgment of the
Supreme Court in M. Ismail Farooqui's (1994) case, is
of title and possession. The other important points/
issues relate to limitation, who constructed the building
and when (which was demolished on 06.12.1992), what
was its nature and of course the relief which may be
granted. The complete issues as they stand now are
given below:-

Suit No.4
Issue No. 1 :-

Whether the building in question described as
mosque in the sketch map attached to the plaint
(hereinafter referred to as the building) was a mosque
as claimed by the plaintiffs? If the answer is in the

100

affirmative -

(a) When was it built and by whom-whether by
Babar as alleged by the plaintiffs or by Meer Baqui as
alleged by defendant No. 13?

(b) Whether the building had been constructed on
the site of an alleged Hindu temple after demolishing the
same as alleged by defendant no. 13? If so, its effect?
Issue No. 1-B(a)

Whether the building existed at Nazul plot no. 583
of the Khasra of the year 1931 of Mohalla Kot Ram
Chandra known as Ram Kot, City Ayodhya (Nazul
estate?) Ayodhya? If so its effect thereon)"
Issue No. 1-B(b) :-

Whether the building stood dedicated to almighty
God as alleged by the plaintiffs?

Issue no. 1-B (c):-

Whether the building had been used by the
members of the Muslim community for offering prayers

101

from times immemorial ? If so, its effect?
Issue No. 2:-

Whether the plaintiffs were in possession of the
property in suit upto 1949 and were dispossessed from
the same in 1949 as alleged in the plaint ?
Issue No. 3:-

Is the suit within time?
Issue No. 4:-

Whether the Hindus in general and the devotees of
'Bhagwan Sri Ram in particular have perfected right of
prayers at the site by adverse and continuous
possession as of right for more than the statutory period
of time by way of prescription as alleged by the
defendants?

Issue No. 5(a):-

Are the defendants estopped from challenging the
character of property in suit as a waqf under the
administration of plaintiff No.1 in view of the provision of

102

5(3) of U.P. Act 13 of 1936 ? (This issue has already

been decided in the negative vide order dated 21 .4.1966

by the learned Civil Judge)

Issue No.5(b):- Has the said Act no application to the

right of Hindus in general and defendants in particular,

to the right of their worship?

Issue No.5(c):- Were the proceedings under the said

Act conclusive? (This issue has already been decided in

the negative vide order dated 21 .04.1966 by the learned

civil Judge.)

Issue No.5(d):- Are the said provision of Act XIII of

1936 ultra-vires as alleged in written statement?

(This issue was not pressed by counsel for the

defendants, hence not answered by the learned Civil

Judge, vide his order dated 21.04.1966).

Issue No.5(e):- Whether in view of the findings

recorded by the learned Civil Judge on 21.04.1966 on

issue no. 17 to the effect that, "No valid notification under

section 5(1) of the Muslim Waqf Act (No. XIII of 1936)

103

was ever made in respect of the property in dispute", the
plaintiff Sunni Central Board of Waqf has no right to
maintain the present suit?

Issue No.5(f):- Whether in view of the aforesaid finding,
the suit is barred on account of lack of jurisdiction and
limitation as it was filed after the commencement of the
UP. Muslim Waqf Act, 1960?
Issue No. 6:-

Whether the present suit is a representative suit,
plaintiffs representing the interest of the Muslims and
defendants representing the interest of the Hindus?
Issue No. 7:-

7(a) Whether Mahant Raghubar Dass, plaintiff of
Suit No. 61/280 of 1885 had sued on behalf of Janma-
Sthan and whole body of persons interested in Janma-
Sthan?

Issue No.7(b):- Whether Mohammad Asghar was the
Mutwalli of alleged Babri Masjid and did he contest the
suit for and on behalf of any such mosque?

104

Issue No. 7(c) :- Whether in view of the judgment in the
said suit, the members of the Hindu community,
including the contesting defendants, are estopped from
denying the title of the Muslim community, including the
plaintiffs of the present suit, to the property in dispute? If
so, its effect?

Issue No. 7(d):- Whether in the aforesaid suit, title of
the Muslims to the property in dispute or any portion
thereof was admitted by plaintiff of that suit? If so, its
effect?

Issue No. 8:-

Does the judgment of case No.61/280 of 1885,
Mahant Raghubar Dass Vs. Secretary of State and
others, operate as res judicata against the defendants in
suit?

Issue No. 10:-

105

Whether the plaintiffs have perfected their rights by
adverse possession as alleged in the plaint?

Issue No. 11:-

Is the property in suit the site of Janam Bhumi of Sri
Ram Chandraji?
Issue No. 12:-

Whether idols and objects of worship were place
inside the building in the night intervening 22 nd and 23 rd
December, 1949 as alleged in paragraph 11 of the plaint
or they have been in existence there since before? In
either case effect?
Issue No. 13:-

Whether the Hindus in general and defendants in
particular had the right to worship the Charans and 'Sita
Rasoi' and other idols and other objects of worship, if
any, existing in or upon the property in suit?
Issue No. 14:-

Have the Hindus been worshipping the place in

106

dispute as Sri Ram Janam Bhumi or Janam Asthan and
have been visiting it as a sacred place of pilgrimage as
of right since times immemorial? If so, its effect?
Issue No. 15:-

Have the Muslims been in possession of the
property in suit from 1528 A.D. Continuously, openly
and to the knowledge of the defendants and Hindus in
general? If so, its effect?
Issue No. 16:-

To what relief, if any, are the plaintiffs or any of
them, entitled?
Issue No. 17:-

Whether a valid notification under section 5(1) of
the U.P. Muslim Waqf Act No.XIII of 1936 relating to the
property in suit was ever done? If so, its effect?
(This issue has already been decided by the learned
Civil Judge by order dated 21 .04.1966)
Issue No. 18:-

What is the effect of the judgment of their Lordships

107

of the Supreme Court in Gulam Abbas and others Vs.
State of U.P. and others, A.I.R.. 1981 Supreme Court
2198 on the finding of the learned Civil Judge recorded
on 21 st April, 1966 on issue no. 17?
Issue No. 19 (a):-

Whether even after construction of the building in
suit deities of Bhagwan Sri Ram Virajman and the
Asthan Sri Ram Janam Bhumi continued to exist on the
property in suit as alleged on behalf of defendant No. 13
and the said places continued to be visited by devotees
for purposes of worship? If so, whether the property in
dispute continued to vest in the said deities?
Issue No. 19 (b):-

Whether the building was land-locked and cannot
be reached except by passing through places of Hindu
worship? If so, its effect?
Issue No. 19 (c):-

Whether any portion of the property in suit was
used as a place or worship by the Hindus immediately

108

prior to the construction of the building in question? If
the finding is in the affirmative, whether no mosque
could come into existence in view of the Islamic tenets
at the place in dispute?
Issue No. 19 (d):-

Whether the building in question could not be a
mosque under the Islamic Law in view of the admitted
position that it did no have minarets?
Issue No. 19 (e):-

Whether the building in question could not legally
be a mosque as on plaintiffs own showing it was
surrounded by a grave-yard on three sides.
Issue No. 19 (f):-

Whether the pillars inside and outside the building
in question contain images of Hindu Gods and
Goddesses? If the finding is in affirmative, whether on
that account the building in question cannot have the
character of Mosque under the tenets of Islam.
Issue No. 20 (a):-

109

Whether the waqf in question cannot be a Sunni
Waqf as the building was not allegedly constructed by a
Sunni Mohammedan but was allegedly constructed by
Meer Baqi who was allegedly a Shia Muslim and the
alleged Mutwalis were allegedly Shia Mohammedans? If
so, its effect?
Issue No. 20 (b):-

Whether there was a Mutwalli of the alleged Waqf
and whether the alleged Mutwalli not having joined in
the suit, the suit is not maintainable so far as it relates to
relief for possession?
Issue No. 21:-

Whether the suit is bad for non-joinder of alleged
deities?
Issue No. 22:-

Whether the suit is liable to be dismissed with
special costs?
Issue No. 23:-

If the waqf Board is an instrumentality of state? If

110

so, whether the said Board can file a suit against the
state itself?
Issue No. 24:-

If the waqf Board is state under Article 12 of the
constitution ? If so, the said Board being the state can
file any suit in representative capacity sponsoring the
case of particular community and against the interest of
another community.
Issue No. 25:-

"Whether demolition of the dispute structure as
claimed by the plaintiff, it can still be called a mosque
and if not whether the claim of the plaintiffs is liable to be
dismissed as no longer maintainable?"
Issue No. 26:-

"Whether Muslims can use the open site as mosque
to offer prayer when structure which stood thereon has
been demolished?"
Issue No. 27:-

Whether the outer court yard contained Ram

111

Chabutra, Bhandar and Sita Rasoi? If so whether they
were also demolished on 06.012.1992 along with the
main temple?"
Issue No. 28:-

"Whether the defendant No. 3 has ever been in
possession of the disputed site and the plaintiffs were
never in its possession?"

Suit No.1

Issue No. 1 :-

Is the property in suit the site of Janam Bhumi of
Shri Ram Chandra Ji?
Issue No. 2 :-

Are there any idols of Bhagwan Ram Chandra Ji
and are His charan Paduka' situated in the site in suit?
Issue No. 3 :-

Has the plaintiff any right to worship the 'Charan
Paduka' and the idols situated in the place in suit?

112

Issue No. 4 :-

Has the plaintiff the right to have Darshan of the
place in suit?
Issue No. 5(a) :-

Was the property in suit involved in original suit no.
61/280 of 1885 in the court of sub-judge, Faizabad'
Raghubar Das Mahant Vs. Secretary of State for India &
others.?

Issue No. 5(b):- Was it decided against the plaintiff?
Issue No. 5(c):- Was that suit within the knowledge of
Hindus in general and were all Hindus interested in the
same?

Issue No. 5(d):- Does the decision in same bar the
present suit by principles of Res judicita and in any other
way.
Issue No. 6 :-

Is the property in suit a mosque constructed by
Shansah Babar commonly known as Babri mosque, in
1528 A.D.

113

Issue No. 7 :-

Have the Muslims been in possession of the
property in suit from 1528 A.D. Continuously, openly
and to the knowledge of plaintiffs and Hindus in
general? If so its effect?
Issue No. 8 :-

Is the suit barred by proviso to section 42 Specific
Relief Act?
Issue No. 9 :-

Is the suit barred by provision of Section (5)(3) of
the Muslim Waqfs Act (UP. Act 13 of 1936)?
Issue No. 9 (a):- Has the said act no application to the
right of Hindus in general and plaintiffs of the present
suit in particular to his right of worship?
Issue No. 9 (b):- Were the proceedings under the said
act referred to in written statement para 15 collusive? If
so, its effect?

Issue No. 9 (c):- Are the said provisions of the U.P. Act
13 of 1936 ultra-vires for reasons given in the statement

114

of plaintiffs counsel dated 9.3.62 recorded on paper No.

454-A?

Issue No. 10 :-

Is the present suit barred by time?
Issue No. 11(a) :-

Are the provisions of Section 91 C.P.C. applicable
to present suit? If so is the suit bad for want of consent
in writing by the advocate general?
Issue No. 11(b) :- Are the rights set up by the plaintiff in
this suit independent of the provisions of Section 91
C.P.C. ? If not its effect?
Issue No. 12 :-

Is the suit bad for want of steps and notices under
order 1 Rule 8 C.P.C. ? If so its effect?
Issue No. 13 :-

Is the suit No.2 of 50 Shri Gopal Singh Visharad Vs.
Zahoor Ahmad bad for want of notice under section 80
C.P.C?
Issue No. 14 :-

115

Is the suit no. 25 of 50 Param Hans Ram Chandra
Vs. Zahoor Ahmad bad for want of valid notice under
section 89 C.P.C.?
Issue No. 15 :-

Is the suit bad for non-joinder of defendants?
Issue No. 16 :-

Are the defendants or any of them entitled to
special costs under Section 35-A C.P.C.?
Issue No. 17 :-

To what reliefs, if any, is the plaintiff entitled?

Suit No.3
Issue No. 1 :-

Is there a temple of Janam Bhumi with idols
installed therein as alleged in para 3 of the plaint?
Issue No. 2 :-

Does the property in suit belong to the plaintiff
No.1?
Issue No. 3 :-

116

Have plaintiffs acquired title by adverse possession
for over 1 2 years?
Issue No. 4 :-

Are plaintiffs entitled to get management and
charge of the said temple?
Issue No. 5 :-

Is the property in suit a mosque made by Emperor
Babar known as Babari masjid?
Issue No. 6 :-

Was the alleged mosque dedicated by Emperor
Babar for worship by Muslims in general and made a
public waqf property?

Issue No. 7(a) :-

Has there been a notification under Muslim Waqf
Act (Act no. 13 of 1936) declaring this property in suit as
a Sunni Waqf?

Issue No. 7(b) :- Is the said notification final and
binding? Its effect.

117

Issue No. 8 :-

Have the rights of the plaintiffs extinguished for
want of possession for over 12 years prior to the suit?
Issue No. 9 :-

Is the suit within time?

Issue No. 10(a) :- Is the suit bad for want of notice

u/s80C.

Issue No. 10(b) :- Is the above plea available to

contesting defendants?

Issue No. 11 :-

Is the suit bad for non-joinder of necessary
defendants?
Issue No. 12 :-

Are defendants entitled to special costs u/s 35
C.P.C.?
Issue No. 13 :-

To what relief, if any, is the plaintiff entitled?
Issue No. 14 :-

118

Is the suit not maintainable as framed?
Issue No. 15 :-

Is the suit property valued and Court-Fee paid
sufficient?
Issue No. 16 :-

Is the suit bad for want of notice u/s 83 of U.P. Act
13 of 1936?
Issue No. 17 :-

(added by this Hon'ble Court order dated 23.2.96)

"Whether Nirmohi Akhara, Plaintiff, is Panchayati
Math of Rama Nand sect of Bairagis and as such is a
religious denomination following its religious faith and
per suit according to its own custom."

Suit No.5
Issue No. 1 :- Whether the plaintiffs 1 and 2 are
juridical persons?

Issue No. 2 Whether the suit in the name of

deities described in the plaint as plaintiffs 1 and 2 is not

119

maintainable through plaintiff no. 3 as next friend?
Issue No.3(a):- Whether the idol in question was
installed under the central dome of the disputed building
(since demolished) in the early hours of December
23,1949 as alleged by the plaintiff in paragraph 27 of the
plaint as clarified on 30.04.92 in their statement under
order 10 Rule 2 C. P. C?

Issue No.3(b):- Whether the same idol was reinstalled
at the same place on a chabutra under the canopy?
Issue No. 3(c):-

"Whether the idols were placed at the disputed site
on or after 6.12.92 in violation of the courts order dated
14.8.1989, 7.11.1989 and 15.11.91.
Issue No. 3(d):-

If the aforesaid issue is answered in the affirmative
whether the idols so placed still acquire the status of a
deity?"

Issue No. (4):- Whether the idols in question had

120

been in existence under the "Shikhar" prior to 6.12.92

from time immemorial as alleged in paragraph-44 of the

additional written statement of defendant no. 3?

Issue No. (5):- Is the property in question properly

identified and described in the plaint?

Issue No. (6):- Is the plaintiff No. 3 not entitled to

represent the plaintiffs 1 and 2 as their next friend and is

the suit not competent on this account?

Issue No. (7):- Whether the defendant no. 3 alone is

entitled to represent plaintiffs 1 and 2, and is the suit not

competent on that account as alleged in paragraph 49 of

the additional written statement of defendant no. 3?

Issue No. (8):- Is the defendant Nirmohi Akhara the

"Shebait" of Bhagwan Sri Rama installed in the disputed

structure?

Issue No. (9):- Was the disputed structure a mosque

known as Babri Masjid.

Issue No. (10):- Whether the disputed structure

could be treated to be a mosque on the allegations

121

contained in paragraph-24 of the plaint?

Issue No. (11):- Whether on the averments made in

paragraph-25 of the plaint no valid waqf was created in

respect of the structure in dispute to constitute is as a

mosque?

Issue No. (13):- Whether the suit is barred by

limitation?

Issue No. (14):- Whether the disputed structure

claimed to be Babri Masjid was erected after

demolishing Janma-Sthan temple at its site.

Issue No. 15:-

Whether the disputed structure claimed to be Babri
Masjid was always used by the Muslims only regularly
for offering Namaz ever since its alleged construction in
1528 A.D. to 22 nd December 1949 as alleged by the
defendant 4 and 5?
Issue No. 16:-

Whether the title of plaintiff 1 & 2, if any, was
extinguished as alleged in paragraph 25 of the written

122

statement of defendant no.4? If yes, have plaintiffs 1 & 2
re-acquired title by adverse possession as alleged in
paragraph 29 of the plaint?

Issue No. 18:-

Whether the suit is barred by section 34 of the
Specific Relief Act as alleged in paragraph 42 of the
additional written statement of defendant no. 3 and also
as alleged in paragraph 47 of the written statement of
defendant no.4 and paragraph 62 of the written
statement of defendant no. 5?
Issue No. 19:-

Whether the suit is bad for non-joinder of necessary
parties, as pleaded in paragraph 43 of the additional
written statement of defendant No. 3?
Issue No. 20:-

Whether the alleged Trust, creating the Nyas
defendant no. 21, is void on the facts and grounds
stated in paragraph 47 of the written statement of

123

defendant no. 3?
Issue No. 21:-

Whether the idols in question cannot be treated as
deities as alleged in paragraphs 1,11,12,21,22,27 and
41 of the written statement of defendant no. 4 and in
paragraph 1 of the written statement of defendant no. 5?
Issue No. 22:-

Whether the premises in question or any part
thereof is by tradition, belief and faith the birth place of
Lord Rama as alleged in paragraphs 19 and 20 of the
plaint? If so, its effect?
Issue No. 23:-

Whether the Judgment in suit no.61/280 of 1885
filed by Mahant Raghuber Das in the Court of Special
Judge, Faizabad is binding upon the plaintiffs by
application of the principles of estoppel and res judicata
as alleged by the defendants 4 and 5?
Issue No. 24:-

Whether worship ha been done of the alleged

124

plaintiff deity on the premises in suit since time
immemorial as alleged in paragraph 25 of the plaint?
Issue No. 25:-

Whether the Judgment and decree dated 30 th
March 1946 passed in suit no. 29 of 1945 is not binding
upon the plaintiffs as alleged by the plaintiffs?
Issue No. 26:-

Whether the suit is bad for want of notice under
section 80 C.P.C. as alleged by the defendants 4 and 5?
Issue No. 27:-

Whether the plea of suit being bad for want of
notice under section 80 C.P.C. can be raised by
defendants 4 and 5?
Issue No. 28:-

Whether the suit is bad for want of notice under
section 65 of the U.P. Muslim Waqfs Act, 1960 as
alleged by defendants 4 and 5? If so, its effect.
Issue No. 29:-

Whether the plaintiffs are precluded from bringing

125

the present suit on account of dismissal of suit no. 57 of
1976 (Bhagwan Sri Ram Lala Vs. state) of the Court of
Munsif Sadar, Faizabad.
Issue No. 30:-

To what relief, if any, are plaintiffs or any of them
entitled.

Issues relating to graveyard alleged to exist around
the premises in dispute (i.e. issue No.1-A, 1-B(d) of Suit
No. 4 and Issue No. 17 of Suit No. 5) were deleted by
order of this Court dated 23.02.1996 in view of Supreme
Court judgment in Dr. M. Ismail Farooqi Vs. Union of
India, 1994 (6) S.C.C. 360 wherein the Supreme Court
confined the dispute only to the premises in dispute.
Issue No. 12 in Suit No. 5 relating to shifting of the
mosque (if the structure in question was held to be a
mosque) was deleted through the order of the same
date, i.e. 23.02.1996.

Issue No. 9 of Suit No.4 relating to service of valid
notice under Section 80, C.P.C. has been deleted

126

through order of Court dated 22/25.05.1990.
Oral Evidence: -

Oral evidence was recorded after transfer of the
suits to this Court from 24.07.1996 to 23.03.2007. After
enforcement of 1999 & 2002 Amendments in C.P.C,
w.e.f. 01.07.2002, most of the oral evidences were
recorded by the Commissioner/ O.S.D. of this Court,
who is of the rank of A.D.J./ D.J.

In total 86 witnesses were examined; 32 on behalf
of plaintiffs in Suit No.4 as PW-1 to PW-32, 18 on behalf
of plaintiffs in Suit No.5 as O.P.W.-1 to O.P.W.-13 and
O.P.W.-15 to O.P.W.-18 and 36 on behalf of plaintiffs of
Suits No.1 & 3 (who are also defendants in Suits No.4 &
5) and other defendants of Suit No.4 as D.Ws.

The cross examination of Sri Deoki Nandan
Agarawal original plaintiff No.3 of Suit No.5, O.P.W.-2
could not be completed due to his death.

All the witnesses may broadly be divided into three
categories. The witnesses of first category were

127

witnesses of fact, second category witnesses claimed to
be historians and the third category witnesses deposed
about the A.S.I, report. Most of the witnesses of fact
admitted in their cross examination that they often had
momentary lapses of memory.
Documentary Evidence:-

Thirty four documents filed by plaintiffs of Suit No.1
have been exhibited as Ex.-1 to Ex. -34. Seventy three
documents filed by defendants of this suit have been
exhibited as Ex. A-1 to Ex. A-72 (one document has
been exhibited as Ex. A-3A). Twenty one documents
filed by plaintiff of Suit No. 3 have been exhibited as Ex.-
1 toEx.-21.

One hundred and twenty eight documents filed by
plaintiffs of Suit No.4 have been exhibited as Ex.-1 to
Ex.-128. The documents consist of books, gazetteers or
their parts, certified copies of pleadings and judgments
of Suit of 1885, of other suits and of different
applications and executive orders, extracts of revenue

128

records etc.
A.S.I. Report:-

Through orders dated 01.08.2002 & 23.10.2002,
Geo Radiological Survey of the ground beneath the
premises in dispute was suo-motu ordered to be held.
The said order was passed, in spite of opposition of
almost all the parties, under Order XVI Rule 14, Order
XVIII Rule 18, Order XXVI Rule 10-A and Section 151,
C.P.C. G.P.R. Survey was conducted by Tojo-Vikas
International Pvt. Ltd. It submitted the report on
17.02.2003. According to the report some anomalies
were observed. Accordingly, the court through order
dated 05.03.2003 directed excavation by A.S.I. The
A.S.I, after excavation submitted the report on
25.08.2003. The last para of Summary of Results of the
report is quoted below:

" The Hon'ble High Court, in order to get
sufficient archaeological evidence on the issue
involved "whether there was any temple/structure

129

which was demolished and mosque was
constructed on the disputed site" as stated on page
1 and further on p. 5 of their order dated 5 march
2003, had given directions to the Archaeological
Survey of India to excavate at the disputed site
where the GPR Survey has suggested evidence of
anomalies which could be structure, pillars,
foundation walls, slab flooring etc. which could be
confirmed by excavation . Now, viewing in totality
and taking into account the archaeological
evidence of a massive structure just below the
structure and evidence of continuity in structural
phases from the tenth century onwards upto the
construction of the disputed structure alongwith the
yield of stone and decorated bricks as well as
mutilated sculpture of divine couple and carved
architectural' members including foliage patterns,
amalaka, kapotapali doorjamb with semi-circular
pilaster, broken octagonal shaft of black schist

130

pillar, lotus motif, circular shrine having pranala

(waterchute) in the north, fifty pillar bases in

association of the huge structure, are indicative of

remains which are distinctive features found

associated with the temples of north India."

Hearing:-

One of the members of this full bench Hon'ble S.R.

Alam, J. took oath as Chief Justice of M.P. High Court

on 20.12.2009. The then Chief Justice of this Court

through order dated 21.12.2009 constituted fresh bench

by inducting me therein. The newly constituted bench

started hearing the arguments afresh w.e.f. 11.01.2010.

The arguments were heard almost non-stop till

26.07.2010 covering 90 working days. On 26.07.2010

following order was passed:

"Arguments in all the four suits concluded.
Arguments in Suits No.1, 3 & 4 had already
concluded. Today, the arguments in Suit No. 5 have
been concluded. This newly constituted bench
heard the arguments for 90 working days starting

131

from 11.01.2010.

Sri P.N. Mishra, Sri Ravi Shankar Prasad, Sri
P.R. Ganpathi Aiyer and Sri K.N. Bhat, Senior
Advocates; Sri Zafaryab Jilani, Sri M.A. Siddiqui, Sri
Syed Irfan Ahmad, Sri R.L. Verma, Sri Tarunjeet
Verma, Sushri Ranjana Agnihotri, Sri MM. Pandey,
Sri Rakesh Pandey, Sri Hah Shankar Jain, Sri R.K.
Shvastava, Sri Ajay Kumar Pandey Sri D.P. Gupta
and Sri Ved Prakash, Advocates; and Sri S.P.
Shvastava, Addl. Chief Standing Counsel advanced
their submissions on behalf of respective parties
quite ably and we put on record our appreciation for
the assistance they have rendered to this Court and
the cordial atmosphere they have maintained in the
Court.

We greatly appreciate not only the arguments
of learned counsel for all the parties but also the
manner in which the arguments were advanced. No
learned counsel interrupted the arguments of any
other learned counsel. Learned counsel were quite
careful while advancing their arguments and none
of them said any such thing which could injure the
feeling of the other side.

Judgment reserved and will be delivered in the
second fortnight of September, 2010. Exact date for

132

delivery of judgment will be notified in the cause list
Learned counsel who have advanced the
arguments or their assisting counsel will also be
informed about the date of delivery of judgment
about one week in advance.

Tomorrow we propose to discuss with each
and every advocate, who argued the matter, or his
assisting advocate, in the order in which they had
advanced the arguments, the possibility of amicable
settlement in terms of Section 89, C.P.C. in the
Chamber. After individual sessions, if need is felt, a
joint session may also be held.

Put up tomorrow in Chamber of the Senior
Judge among us (S.U. Khan, J.) for the above
purpose."

Thereafter on 27.07.2010 following order was

passed:

"Today, we discussed the possibility of
amicable settlement of the dispute with different
advocates. At present nothing substantial has come
out, however we have indicated to all the learned
counsel that until delivery of judgment they are at
complete liberty to contact the O.S.D. for formation

133

of the Bench in case some possibility of
compromise emerges.

Since 02.08.2010, this Bench would be
constituted in Chamber for preparation and
dictation of judgment. "

Thereafter by order dated 08.09.2010 specific date
24.09.2010 was fixed for delivery of judgment. Due to
stay order by the Supreme Court passed on 23.09.2010
the judgment could not be pronounced on the said date.
Supreme Court dismissed the Special Leave Petition on
28.09.2010. Thereafter, 30.09.2010 was fixed for
pronouncement of judgment.

The following learned counsel argued the matters

for different parties as indicated below:

List of the Learned Counsel who have argued in all the

suits
(From:- 11.01.2010 to 26.07.2010)

SI.
No.

Name of the Parties Name

Counsel

Sri Z. Jilani, Adv. In O.O. S. No. 4 of 1 989 for the

Plaintiffs
(The Sunni Central Board of

134

Waqfs U.P.)

Sri M.A. Siddiqui,
Adv.

For Plaintiff No.7 (Mohd.
Hashim)

Sri R.L. Verma,
Adv. Assisted by
Sri Tarunjeet
Verma, Adv.

For Def. No. 3 (Nirmohi Akhara)

Sri P.N. Mishra,
Adv. Assisted by
Km. Ranjana
Agnihotri, Adv.

For Def. No. 20 (Ram
Janambhumi Punrudhar Samiti)
convenor Sri M.M. Gupta

Sri M.M. Pandey,
Adv.

For Def. No. 2/1 (Mahant Suresh
Das)

Sri Ravi Shanker
Prasad, Adv.
Assisted by Sri
M.M. Pandey, Adv.

For Def. No. 2/1 (Mahant Suresh
Das)

Sri M.M. Pandey,
Adv.

For Def. No. 2/1 (Mahant Suresh
Das)

Sri P.R. Ganapathi
Iyer, Sr. Adv.
Assisted by Sri
Rakesh Pandey,
Adv.

For Def. No. 13/1 (Mahant
Dharam Das)

Sri M.M. Pandey,
Adv.

For Def. No. 2/1 (Mahant Suresh
Das)

Sri Rakesh
Pandey, Adv.

For Def. No. 13/1 (Mahant
Dharam Das)

Sri H.S. Jain, Adv.

For Def. No. 10 (Hindu
Mahasabha)

Sri Z. Jilani, Adv.

For plaintiffs in rejoinder
argument

Sri M.A. Siddiqui,
Adv.

For Plaintiff No.7 Mohd. Hashim
(in rejoinder)

Sri A.K. Pandey,

For Plaintiff (Sri Rajendra Singh)

135

Adv.

inO.O.S. No.1 of 1989

Sri Z. Jilani, Adv.

For Def. No. 10 (The Sunni
Central Board of Waqfs)

Sri Tarunjeet

For Plaintiff (Nirmohi Akhara) in

Verma, Adv.

O.O.S. No.3of 1989

Sri R.L. Verma,

For Plaintiff (Nirmohi Akhara) in

Adv. Assisted by

O.O.S. No.3of 1989

Sri Tarunjeet

Verma, Adv.

Sri Z. Jilani, Adv.

For Def. No. 9 (The Sunni

and Sri M.A.

Central Board of Waqfs)

Siddiqui, Adv.

Sri K.N. Bhat, Sr.

For Plaintiffs (Bhagwan Sri Ram

Adv. Assisted by

Lala Virajman at Ayodhya &

Sri M.M. Pandey,

others in O.O.S. No.5 of 1989)

Adv. &SriA.K.

Pandey, Adv.

Sri M.M. Pandey,

For Plaintiffs in O.O.S. No.5 of

Adv. Assisted by

1989

Sri A.K. Pandey,

Adv.

Sri Ved Prakash,

For Plaintiffs in O.O.S. No.5 of

Adv.

1989

Sri R.L. Verma,

For Def. No. 3 (Nirmohi Akhara)

Adv. Assisted by

in O.O.S. No.5 of 1989

Sri Tarunjeet

Verma, Adv.

Sri H.S. Jain, Adv.

For Def. No. 11 (Hindu
Mahasabha)

Sri Z. Jilani, Adv.

For Def. No. 4 (The Sunni Central
Board of Waqfs)

Sri M.A. Siddiqui,
Adv.

For Def.No.5 (Mohd. Hashim)

Sri J.S. Jain, Adv.

For Def. No. 11 (Hindu
Mahasabha)

136

FINDINGS

I- Limitation

Issue No. 3 of Suit No.4,
Issues No. 8 & 1 of Suit No. 1 ,
Issue No.9 of Suit No.3,
Issue No.13 of Suit No.5

Suit no. 4 and 3

Almost all the defendants in suit no. 4 particularly
defendant no. 20 represented by Sri P.N.Misra learned
counsel have argued that the suit is barred by limitation.
The position of limitation is exactly same in suit no.3
also. Suit No.4 was instituted on 18.12.1961 and Suit
No.3 on 17.12.1959.

The argument of Mr. P.N. Misra learned counsel is
that as premises in dispute had been attached in
proceedings under Section 145,146 Cr.P.C. on
29.12.1949 and had been directed to be given under the
receivership of Sri Priya Datt Ram hence relief for
possession could not be asked for. In this regard it has

137

further been argued that as after attachment or after
appointment of receiver, the property is custodia legis
and supuardar/receiver/court holds the property for the
benefit of the true owner hence it is not permissible to
seek relief of possession against private/contesting
defendant and the only relief which may be asked for is
of declaration for which limitation was six years under
article 120 of Limitation Act 1908 (misc. article). In this
regard reliance has mainly been placed upon two
authorities one of Privy council reported in Raja Rajgan
Maharaja Jagatjit Singh Vs. Raja Partab Bahadur
Singh AIR 1942 Privy Council 47 and the other of
Supreme Court reported in Deo Kuer V. Sheo Prasad
Singh AIR 1966 Supreme Court 359 (paragraphs 5
and 6).

As far as Supreme Court authority is concerned, it
was dealing with the proviso to Section 42 of old
Specific Relief Act of 1877 according to which relief for
declaration alone was not to be granted if consequential

138

relief might be asked for but had not been asked for.

Supreme Court held that if property is attached in

proceedings under Section 145 Cr.P.C, it is custodia

legis and it is not necessary in the suit to ask for

possession. However, in the authority of the Supreme

Court no question of limitation was involved. In the said

judgment it was also observed that attachment under

Section 145 Cr.P.C. was continuing and no final

decision had been taken in the said proceedings even

until the decision by the Supreme Court. Obviously it

was an attachment pending decision on the ground of

emergency.

In Shanti Kumar Panda vs. Shakuntala Devi

A.I.R. 2004 S.C. 115 also same thing has been held.

Para 13 thereof is quoted below :-

In a case where attachment has been
made under Section 146(1) of the Code, it
is not necessary for the unsuccessful party
to seek the relief of possession from the
court; a mere adjudication of rights would
suffice inasmuch as the attached property
is held custodia legis by the Magistrate for

139

and on behalf of the party who would be
successful from the competent Court by
establishing his right to possession over
the property.

In the authority of the Privy council the magistrate

had passed a final order on 06.04.1932 in the

proceedings under Section 145/146 Cr.P.C, on the

applications and agreement of the parties, that pending

the decision of Civil Court the land should remain

attached and that the proceedings should in the mean

time be consigned to records, the land to be released to

the party who succeeded in the Civil suit. Attachment

order on the ground of emergency had been passed on

23.02.1932. The Privy Council held that thereafter the

attaching Magistrate/Tehsildar held the property for true

owner. Privy Council also held "that the suit which was

subsequently instituted was rightly confined to a mere

declaration of title and was neither in form nor

substance a suit for possession of immovable

property". (The suit had been instituted on 23.01.1933).

140

In respect of limitation the Privy Council held that article
47 of the Limitation Act 1908 did not apply as there had
been no order for possession by the Magistrate under
Section 145 Cr.P.C. It further held that as the suit was
one for a declaration of a title it seemed clear that
articles 142 and 144 did not apply and article which was
applicable was article 120 (miscellaneous Article).

On the basis of the above authorities, Sri P.N.
Misra, learned counsel has strenuously argued that the
only suit which could be filed was for declaration. It has
further been argued, on the basis of the Privy Council
authority, that the limitation for the said suit was six
years under article 120 of the old limitation Act and the
Limitation started from the date of the attachment order
i.e. 29.12.1949.

The first point being clearly covered by the above
authorities is accepted. However, the second point
relating to start of limitation from 29.12.1949, and no
other date is not accepted for the following reasons.

141

When the suits (except suit no. 5) were instituted

Limitation Act 1908 (old Limitation Act) was in force. It

was replaced by Limitation Act 1963 (new Limitation

Act). However, by virtue of Section 31(b) of the new

Limitation Act, nothing in the new Limitation Act shall

"affect any suit appeal or application
instituted preferred or made before and
pending at such commencement "
Under the old Limitation Act it was provided under

article 120 that time to institute a suit for which

Limitation had not been provided in any other article

would be six years. The corresponding article under the

new Limitation Act is article 113 according to which

limitation to file suit is three years from the date when

the right to sue accrues, for any suit for which no period

of limitation is provided elsewhere in the schedule.

Under the new Limitation Act article 58 specifically

covers general suits for declaration and provides three

years limitation therefor. However, there was no

corresponding article for general suits for declaration

142

under the old Limitation Act hence such suits were
covered by misc. article i.e. article 120 providing six
years limitation.
First Reason :-

The last order which was passed in proceedings
under Section 145 Cr.P.C. in the instant matter was on
30.07.1953. (except the order of 1970 appointing new
receiver after the death of the receiver originally
appointed). It has been noticed earlier that in suit no.1
ad interim temporary injunction had been granted by the
Civil judge on 16.01.1950 which was clarified by order
dated 19.01.1950 and the temporary injunction order
had been confirmed after hearing both the parties
through order dated 03.03.1951.

The learned City Magistrate in his order dated

30.07.1953 passed in Section 145 Cr.P.C. proceedings

held as follows in its concluding part :-

"the finding of the Civil Court will be binding on the
Criminal Court it is no use starting proceedings in

143

this case under Section 145 Cr.P.C. and recording
evidence specially when a temporary injunction
stands, as it can not be said that what may be the
finding of this Court after recording the evidence of
parties. From the administrative point of view the
property is already under attachment and no breach
of peace can occur.

I, therefore, order that the file under Section 145
Cr.P.C. be consigned to records as it is and will be
taken out for proceedings further when the
temporary injunction is vacated."

From the above quoted portion of the order of the
Magistrate it is quite clear that neither proceedings
under Section 145 Cr.P.C. had been dropped nor
finalized. This position was further clarified by the
learned Magistrate through another order dated
31.07.1954 which was passed on an application dated
22.07.1954 filed by Gopal Singh Visharad plaintiff of
suit no.1. The prayer in the application was that entire
file of the case under Section 145 Cr.P.C. be preserved
and not weeded out until such time as it was summoned

144

by the Civil Court even though under the Rules time

might come for its weeding out. The concerned clerk

had noted on the application that according to Awadh

Criminal Rules file would be due for weeding after

31.12.1956. The following order was passed by the

Magistrate on 31.07.1954:

"This file can not be weeded as it is not a disposed
of file. How do you report that it will be weeded of?.

When the learned Magistrate had recorded in his

order dated 30.07.1953 that no breach of peace could

occur, he should have dropped the proceedings under

Section 145(5) Cr.P.C. Which is quoted below:

Nothing in this section shall preclude any party
so required to attend, or any other person
interested, from showing that no such dispute as
aforesaid exists or has existed; and in such case
the Magistrate shall cancel his said order, and all
further proceedings thereon shall be stayed, but,
subject to such cancellation, the order of the
Magistrate under sub-s. (1) shall be final.

In any case if after passing of preliminary order
and attachment order considering the case to be of

145

emergency but before the proceedings under Section

145 Cr.P.C. are finalised, Civil Court decides the matter

in a suit either finally or at the interim injunction

application stage, Magistrate shall conclude the

proceedings by passing final order. In Mathuralal Vs.

Bhanwarlal AIR 1980 S.C. 242, Supreme Court in the

middle of para 4 has held as follows:

"Thus a proceeding begun with a preliminary
order must be followed up by an enquiry and end
with the Magistrate deciding in one of three ways
and making consequential orders. There is no half
way house, there is no question of stopping in the
middle and leave the parties to go to the Civil
Court. Proceeding may however be stopped at any
time if one or other of the parties satisfies the
magistrate that there has never been or there is no
longer any dispute likely to cause a breach of the
peace. If there is no dispute likely to cause a
breach of the peace, the foundation for the
jurisdiction of the magistrate disappears. The
magistrate then cancels the preliminary order. This
is provided by S. 145 sub-s.(5). Except for the
reason that there is no dispute likely to cause a
breach of the peace and as provided by S. 145(5),
a proceeding initiated by a preliminary order under
S. 145(1) must run its full course".

(In the case before the Supreme Court, suit had not
been filed)

146

In Dharam Pal vs. Srimati Ram Sri A.I.R. 1993

S.C. 1361 it has been held in the middle of para-5 as

follows:

"It is obvious from sub-sec. (1) of S. 146, that
the Magistrate is given power to attach the subject
of dispute "until the competent Court has
determined the rights of the parties thereto with
regard to the person entitled to the possession
thereof." The determination by a competent Court
of the rights of the parties spoken of there has not
necessarily to be a final determination. The
determination may be even tentative at the interim
stage when the competent Court passes an order
of interim injunction or appoints a receiver in
respect of the subject-matter of the dispute pending
the final decision in the suit. The moment the
competent Court does so, even at the interim stage,
the order of attachment passed by the Magistrate
has to come to an end. Otherwise, there will be
inconsistency between the order passed by the
Civil Court and the order of attachment passed by
the Magistrate. The proviso to sub-sec. (1) of
S.146 itself takes cognizance of such a situation
when it states that "Magistrate may withdraw the
attachment at any time if he is satisfied that there is
no longer any likelihood of any breach of peace
with regard to the subject of dispute." When a Civil
Court passes an order of injunction or receiver, it is
the Civil Court which is seized of the matter and
any breach of its order can be punished by it
according to law. Hence on the passing of the
interlocutory order by the Civil Court, it can
legitimately be said that there is no longer any
likelihood of the breach of the peace with regard to

147

the subject of dispute."

Accordingly, Magistrate had absolutely no
jurisdiction to keep the matter pending indefinitely.
(Technically even till date proceedings u/s 145 Cr.P.C.
are pending). He should have either dropped the
proceeding on the ground that Civil Court had granted
confirmed temporary injunction order or should have
passed some final order. In any case Magistrate should
have dropped the proceedings or passed some other
final order after 26.04.1955 when miscellaneous appeal
FAFO no. 154 of 1951 filed against confirmed temporary
injunction order dated 03.03.1951 was dismissed by the
High Court.

The course adopted by the Magistrate is not
warranted by any of the provisions contained in Sections
145 and 146 Cr.P.C. The course adopted by the
Magistrate on the one hand confused the parties
regarding start of limitation and on the other hand kept

148

the limitation suspended. The use of the word 'starting'
by the Magistrate in its last order dated 30.07.1953 ("it
is no use starting proceedings in this case under Section
145 Cr.P.C") confounded the confusion.

The above authority of the Privy Council (Raja
Rajgan Maharaja Jagatjit Singh Vs. Raja Partab
Bahadur Singh, AIR 1942 Privy council 47) is not
applicable as firstly in that case final order had been
passed in proceedings under Section 145 Cr.P.C. hence
that might be treated to be the starting point for
limitation. Secondly the Privy Council only held that
article 120 applied. It did not say any thing regarding
starting point for limitation.

Normally suit for declaration is filed after final order
under Section 145 Cr.P.C. However, it can not be said
that until final order is passed by the Magistrate in
proceedings under Section 145 Cr.P.C, suit for
declaration can not be filed. In the above authority of the
Supreme Court of Deo Kuer, (A.I.R. 1966 S.C. 359) the

149

suit for declaration had been filed after attachment
pending decision (situation being of emergency) by the
Magistrate. The proceedings under Section 145 Cr.P.C.
had not been finalised even until decision by the
Supreme Court still the Supreme Court did not hold the
suit to be premature.

It is, therefore quite clear that in case the
Magistrate had passed some final order either after
dismissal of the appeal directed against the temporary
injunction order (when there remained no possibility of
vacation of temporary injunction, as referred to in the
last sentence of the order dated 30.07.1953 passed by
the Magistrate) or on any other date, it would have
provided fresh starting point for the purposes of
limitation for filing suit for declaration.

Second Reason :-

If in proceedings under Section 145/146 Cr.P.C.
between two parties, magistrate passes an order to the

150

effect that he is unable to decide the possession and
directs continuance of attachment, it is not at all
necessary that both the parties must separately file suits
for declaration. Similarly if after attachment pending
decision in 145, Cr.P.C. proceedings on the ground of
emergency, one party opts to file suit for declaration (as
was done in the aforesaid Supreme Court authority of
Deo Kuer, 1966) it is not necessary that other party shall
also file similar suit for declaration. Even factually it
does not happen. Suit for declaration by one of the
parties is sufficient and in the said suit the competent
court will adjudicate the rights of both the parties,
plaintiff as well as defendant. If the competent court
holds that defendant has got title to the property and not
the plaintiff and thereupon dismisses the suit, such
determination would be sufficient for releasing the
property in his (defendants') favour as per requirement
of Section 146(1) Cr.P.C. which is quoted below:

"146.(1) If the Magistrate decides that none of

151

the parties was then in such possession, or is
unable to satisfy himself as to which of them was
then in such possession of the subject of dispute,
he may attach it until a competent Court has
determined the rights of the parties thereto or the
person entitled to possession thereof."

Accordingly, even if it is held that suit no. 4 & 3 are
barred by limitation, still rights and entitlement of the
contesting parties have to be decided in suit no.1 which
is undisputedly within time. If the title of plaintiff of suit
no. 4 i.e. Sunni Central Waqf Board which is also
defendant no. 10 in suit no.1 or of plaintiff of suit no. 3
i.e. Nirmohi Akharha which is also defendant no.11 in
suit no. 1 is decided in suit no.1, that would be sufficient
for the purposes of Section 146(1) Cr.P.C.
Third Reason :-

The demolition of the constructed portion of the
premises in dispute on 06.12.1992, acquisition of the
premises in dispute and adjoining area by the Central
Government and the judgment of the Supreme Court in

152

Doctor Ismail Farooqui's case [1994 (6) S.C.C. 360]
changed the whole scenario and gave a fresh starting
point for the purposes of limitation. Even if it is assumed
that the remedy of all the parties except of plaintiff in suit
no.1 stood barred due to lapse of limitation still his/its
rights subsisted. Section 27 of New Limitation Act (28 of
old Limitation Act) did not extinguish the right to property
as due to attachment a suit for possession could not be
filed. Section 28 of Limitation Act, 1908 is quoted below:

"28. Extinguishment of right to property.- At

the determination of the period hereby limited to
any person for instituting a suit for possession of
any property, his right to such property shall be
extinguished. "

Demolition of structure was more severe violation of
the right in respect of the constructed portion than its
attachment. For suits for declaration such situation gives
a fresh starting point for limitation. Suits for declaration
were provided for by Section 42 of Specific Relief Act

153

1877 (corresponding provision in Specific Relief Act
1963 is Section 34), which is quoted below:-

"Section-42. Any person entitled to any legal
character, or to any right as to any property, may
institute a suit against any person denying, or
interested to deny, his title to such character or
right, and the Court may in its discretion make
therein a declaration that he is so entitled, and the
plaintiff need not in such ask for any further relief:

Provided that no Court shall make any such
declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits
to do so.

Explanation :- A trustee of property is a
"person interested to deny" a title adverse to the
title of some one is not in existence, and for whom,
he would be a trustee."

It has been held in various authorities of Privy
Council, Supreme Court and different High Courts that it
is not every invasion or threat of the right of plaintiff by
the defendant which makes it mandatory for the plaintiff
to seek declaration of right. It is only invasion of a
serious nature which requires the plaintiff to necessarily
file suit for declaration otherwise he may lose the right
after expiry of period of limitation prescribed therefor.

154

However, plaintiff may opt to file suit for declaration
even after mildest possible invasion or threat. In this
regard reference may be made to Jitendra Nath
Ghose and Ors. v. Monmohan Ghose and Ors. AIR
1930 PC 193 . In the said case decree for sale had been
passed. Thereafter, execution application was filed.
Privy Council held that starting point of limitation for
filing suit for declaration by third party transferee was
date of filing of execution application and not the date of
decree. Of course, if the third party transferee had
opted to file the suit for declaration after passing of the
decree it would have been quite maintainable and not
premature. Similarly in Mst. Rukhmabai v. Lala
Laxminarayan and Ors. AIR 1960 S.C. 335 (para 30 a)
it has been held that for a suit for declaration that
several trust deeds etc. were sham the cause of action
arose when Commissioner reached the spot to take
measurements for preparation of final decree of partition
pursuant to preliminary decree of partition which had

155

been passed on the basis of trust deeds etc. and not at
the time of filing of the partition suit or passing of
preliminary decree therein. However, in that case also in
case plaintiff had opted to file suit for declaration either
after the execution of the trust deeds etc. or after filing of
partition suit or after the said suit was decreed the suit
would have been fully maintainable and not premature.

Fourth Reason :-

The Magistrate/Supardar/Receiver is not expected
to hold the property indefinitely after attachment in
proceedings under Section 145/146 Cr.P.C. In such
situation liberal view of adjudication/ determination of
right by the competent Court will have to be taken
otherwise uncertainty will be perpetuated. The law can
not countenance such situation.

In this regard reference may be made to El lappa
Naicken vs. Lakshmana Naicken A.I.R. 1949 Madras
71, which placed reliance upon an earlier Division

156

Bench authority of the same High Court reported in
Rajah of Venkatagiri v. Isakapalli Subbiah, 26
Madras 410. In the said case, final order was passed
under Section 145/146 Cr.P.C. directing the property to
remain under attachment on the ground that magistrate
was not in a position to decide that which party was in
possession either at the time of the preliminary order or
two months before that. Thereafter a suit was filed by
one of the parties which was dismissed in default,
restoration application was also dismissed and appeal
against the said order was also dismissed. It was held
that even though no further remedy of suit for
declaration was available still any party could file a suit
for mesne profits at any time which would not be
covered by Article 120 of the Limitation Act (providing 6
years limitation) and in such suit for recovery of mesne
profits title will have to be decided and thereupon
magistrate would be obliged to deliver possession in
favour of that party. In the said authority it has also

157

been held that as suit for possession could not be filed
hence Section 28 Limitation Act (old) was not attracted
and right to property was not lost. Under Section 28 of
the old Limitation Act (27 of the new act) only where suit
for possession is not filed within time, remedy as well as
right is lost. However, it is not so in other cases i.e. suit
for declaration, where only remedy may be lost but not
the right.

In suit no. 4 the prayers are for declaration that the
property in suit is mosque, for delivery of possession of
mosque if deemed necessary in the opinion of the Court
and for a direction to the statutory receiver (i.e. Union of
India as per direction of Supreme Court in Ismail
Farooqui's case, 1994) to handover the property to the
plaintiff have been made. In the prayer clause no prayer
for injunction restraining the defendant from interfering
in the plaintiff's right and right of other Muslims to offer
prayer therein has been made. However, in para 13 of
the plaint it has been stated that due to attachment in

158

proceedings under Section 145 Cr.P.C. and
appointment of receiver, Muslims are deprived of their
legal and constitutional rights of offering prayers in the
said Mosque. Similarly, in para 18 it has been stated the
result of the injunction (temporary) order passed in suit
no.1 is that while Hindus are permitted to perform Puja
of the idols placed by them in the Mosque, Muslims are
not allowed even to enter the Mosque. In para 21 -B of
the plaint added in 1995 it has been stated that even
after demolition of the Mosque building by the
miscreants the land over which the building stood is still
Mosque and Muslims are entitled to offer prayers
thereon. In para 23 of the plaint dealing with accrual of
cause of action firstly it has been stated that cause of
action arose on 23.12.1949 since when Hindus were
causing obstruction and interference with the rights of
the Muslims in general particularly of saying prayers in
Mosque. It has further been stated in the said para that
injuries so caused are continuing injuries.

159

Accordingly, the prayer clause read with other
allegations in the plaint may be taken to include prayer
for declaration to the entitlement of offering prayers
continuously and for direction/ injunction in that regard.
In this regard reference may be made to a Full Bench
Authority of Alllahabad High Court reported in Faqira
and another Vs. Hardewa and others, AIR 1928 All
172 (FB) wherein it has been held that if by reading the
plaint as a whole, relief not specifically asked for may be
granted then it shall be granted.

Similarly in Bhagwati Prasad Vs. Chandramaul,
AIR 1966 S.C. 735 it has been held that if a plea is not
specifically made out but is covered by some issue by
implication then it shall be considered. In the said case
plaintiff had described the defendant as tenant.
However, defendant denied the tenancy and asserted
an arrangement which was found by the Court to be in
the nature of licence. The Supreme Court held that
eviction of defendant was permissible as according to

160

his own saying his possession was with leave and
licence of the plaintiff even though plaintiff had not taken
any such plea.

In Madan Gopal Kanodia Vs. Mamraj Maniram,
AIR 1976 SC 461, Udhav Singh Vs. Madhav Rao
Scindia, AIR 1976 SC 744, Manjushri Raha Vs. B.L.
Gupta, AIR 1977 SC 1158 & K.C. Kapoor Vs. Radhika
Devi, AIR 1981 SC 2128, it has been held that
pleadings should not be construed too technically.

The Privy Council in Hukum Chand Vs. Maharaj
Bahadur, AIR 1933 P.C. 193 (on page 197) has held
that obstruction in right of Prayer/worship or starting new
type of prayer is continuing wrong hence every
obstruction provides a fresh cause of action and fresh
starting point for the limitation.

It is also important to note that since the morning of
23.12.1949 Puja, bhog etc. (religious activities of
Hindus) were going on inside the constructed portion of
the premises in dispute. Firstly the administration

161

permitted it in the name of maintaining law and order.
Thereafter the City Magistrate while passing preliminary
order under Section 145, Cr.P.C. on 29.12.1949
directed for the same, however afterwards the said
sentence was scored off. In the original record the
sentence is there in one complete line and it has been
scored off by drawing a line over the words. However
the cutting is not even initialled or signed hence its date
cannot be ascertained. Sri P.D. Sharma, the receiver,
who was required to submit scheme for management for
approval, submitted the scheme to the D.M., Faizabad
(undated) mentioning therein that "The most important
item of management is the maintenance of the Bhog
and Puja in the condition in which it was carried on
when I took over charge." It is admitted to all the parties
that since 23.12.1949 (if not before that) the Puja and
Bhog continued in the constructed portion of the
premises in dispute and no Muslim offered or could offer
Namaz therein. Accordingly, the aforesaid view of the

162

Privy Council of continuing wrong ( Section 23 of

Limitation Act, 1908) applies with greater force in Suit

No.4. It also applies to suit No. 3 as according to its

plaintiff Nirmohi Akhara, its right of managing the Puja

etc. is constantly being denied.

Fifth reason

Even if suit nos. 4 and 3 are held to be barred by

time still the Court is required to record finding and

pronounce judgment on all issues as required by order

14 Rule 2(1) C.P.C. which is quoted below:

"Notwithstanding that a case may be
disposed of on a preliminary issue, the Court shall,
subject to the provisions of sub-rule(2), pronounce
judgment on all issues".

Accordingly we are required to record finding
regarding right and title also. In case suit nos. 4 and 3
are held to be barred by limitation still if title and right of
plaintiffs of any of these two suits is held to exist,
property in dispute will have to be released in its favour

163

as irrespective of dismissal of suit on the ground of
delay, determination of the rights and entitlement to
possession will be there.

In this regard reference may be made to Ases
Kumar Misra vs. Kisssori Mohan A.I.R. 1924 Calcutta

812 . In the said case the facts were that in proceedings
under Section 145/146 Cr.P.C. in between a private
person and a society magistrate concluded the
proceedings by holding that he was unable to decide the
possession hence attachment should continue.
Thereafter some third party filed suit for recovery of
money against some members of the society, suit was
dismissed but findings of ownership was recorded
against the society. Even on the basis of this finding
magistrate handed over the property to the other party
(private person) in proceedings under Section 145
Cr.P.C. even though he was not a party in the civil suit.
The High Court fully approved the said approach and

164

held that it was in accordance with law.
Suit no. 5:- (Deity perpetual minor?)

As far as suit no. 5 is concerned (instituted on
01.07.1989) the plaintiffs of this suit are not parties in
any other suit however, in view of my above finding that
due to wrong order passed by the magistrate dated
30.7.1953 limitation remained suspended (first reason),
and for the fifth reason it is held that this suit is also
within time.

However, at this juncture one argument of learned

counsel for the plaintiff of suit no. 5 requires to be

noticed. The argument is that deity being perpetual

minor, is entitled to the benefit of Sections 6(1) or 7 of

Limitation Act 1963 which are quoted below:-

'6(1) Where a person entitled to institute a
suit or make an application for the execution of a
decree is, at the time from which the prescribed
period is to be reckoned, a minor or insane, or an
idiot, he may institute the suit or make the
application within the same period after the

165

disability has ceased, as would otherwise have
been allowed from the time specified therefor in the
third column of the Schedule.

7. Disability of one of several persons. -

Where one of several persons jointly entitled to
institute a suit or make an application for the
execution of a decree is under any such disability
and a discharge can be given without the
concurrence of such person, time will run against
them all; but, where no such discharge can be
given, time will not run as against any of them until
one of them becomes capable of giving such
discharge without the concurrence of the others or
until the disability has ceased."

In this regard the sole reliance has been placed

upon the following sentence of the Supreme Court

authority reported in Bishwanath vs. Sri Thakur Radha

Ballabhli, A.I.R. 1967 SC 1044.

"An idol is in the position of a minor and when
the person representing it leaves it in a lurch, a
person interested in the worship of the idol can

166

certainly be clothed with an ad hoc power of
representation to protect its interest." (para 10)

In the said authority the question involved was as to
whether a worshipper could file suit for possession of
properties illegally sold by the Shabait. The Supreme
Court held that in normal course Idol was to be
represented by Shabait in a suit however, where the
action of Shabait was against the Idol any worshiper
could file suit on behalf of Idol.

Complete Paragraph No. 10 of the said authority is

quoted below:-

"70. The question is, can such a person
represent the idol when the Shebait acts adversely
to its interest and fails to take action to safeguard
its interest On principle we do not see any
justification for denying such a right to the
worshipper. An idol is in the position of a minor and
when the person representing it leaves it in a lurch,
a person interested in the worship of the idol can
certainly be clothed with an ad hoc power of
representation to protect its interest. It is a

167

pragmatic, yet a legal solution to a difficult situation.
Should it be held that a Shebait, who transferred
the property, can only bring a suit for recovery, in
most of the cases it will be an indirect approval of
the dereliction of the Shebait's duty, for more often
than not he will not admit his default and take steps
to recover the property, apart from other technical
pleas that may be open to the transferee in a suit.
Should it be held that a worshipper can file only a
suit for the removal of a Shebait and for the
appointment of another in order to enable him to
take steps to recover the property, such a
procedure will be rather a prolonged and a
complicated one and the interest of the idol may
irreparably suffer. That is why decisions have
permitted a worshipper in such circumstances to
represent the idol and to recover the property for
the idol. It has been held in a number of decisions
that worshippers may file a suit praying for
possession of a property on behalf of an
endowment; see Radhabai v. Chimnaji, (1878) ILR
3 Bom 27, Zafaryab AH v. Bakhtawar Singh, (1883)
ILR 5 All 497 Chidambaranatha Thambirarn v. P. S.
Nallasiva Mudaliar, 6 Mad LW666 : (AIR 1918 Mad
464), Dasondhay v. Muhammad Abu Nasar, (1911)

168

ILR 33 All 660 at p. 664: (AIR 1917 Mad 112) (FB),
Radha Krishnaji v. Rameshwar Prasad Singh, AIR
1934 Pat 584, Manmohan Haldar v. Dibbendu
ProsadRoy, AIR 1949 Cal 199."

In my opinion the observation that an idol is in the
position of a minor is confined only to the aspect that
just as minor himself cannot file suit and during his
minority if a suit is to be filed, it can be filed only through
his guardian similarly idol cannot file suit by itself and it
can be filed only through someone else who is normally
to be a Shabait and in exceptional cases any other
worshipper. The above observation cannot be extended
to mean that for all other purposes also an Idol is a
minor (a perpetual minor).

Section 6(1) of the Limitation Act deals only with
three types of persons i.e. minor, idiot and insane. It
cannot be applied to any other person natural or
juridical. Moreover Section -6 grants a fresh period of
limitation 'after the dis-ability has ceased.' Accordingly

169

it pre-supposes that disability is likely to cease. In case
of idol this contingency can never arise. If it is perpetual
minor then, it can never become major. Such a situation
is not covered by Section 6(1) of the Act.

If the argument advanced by learned counsel for
the plaintiff of suit no. 5 is accepted then it will mean that
against the property of the idol (debutter property) no
one can mature title by adverse possession, (acquire
title through prescription) for the reason that by virtue of
Section 27 of new Limitation Act (Section 28 of old
Limitation Act) title matures through prescription only at
the determination of the period for instituting a suit for
possession of any property. If idol is a perpetual minor
then limitation will never come to an end (determine).

In the following authorities, it has been held that an
idol cannot be treated to be minor (perpetual minor) for
the purposes of limitation and in case suit for
possession of immovable property is not filed by and on
behalf of idol within the prescribed period of limitation of

170

12 years, the debutter property is lost through adverse
possession and the person in adverse possession
acquires right through prescription under Section 28,
Old Limitation Act (Section 27 of the New Limitation
Act).

AIR 1926 All 392 (DB), Chitarmal Vs. Panchu Lai

In this authority, it has specifically been held that
Section 7 of Old Limitation Act (Section 6 of New
Limitation Act) is not applicable to the case of an idol as
it cannot be deemed to be perpetual minor for the
purposes of limitation. That was a case, which was filed
for recovery of possession of immovable property of an
idol illegally alienated by the Shabait. In the said
authority, the opinion of learned author of Treatise on
Hindu Law (Sastry's Hindu Law) at page 726, V Edition
was not accepted and it was held that the said opinion
had not been followed by any High Court. Reliance for
the said proposition was placed upon the Privy Council

171

authorities reported in Jagdindra Vs. Hemantah, 31
Indian Appeals 203 and Damodar Das Vs. Adhikari
Lakhan Das, 37 Indian Appeals 147.

Similar view has been taken in Parkasdas Vs.
Janki Ballabha, AIR 1926 Oudh 444, which,
incidentally, was related to a property in the same
locality, i.e Mohalla Ram Kot Ayodhya, where property
in dispute in the instant suits is situate. In the said case
it was not specifically held that idol being minor was
entitled to the benefit of Sections 6 & 7 of Limitation Act,
however it was held that debutter property could be lost
by adverse possession and was actually found lost as
such in the said case. Reliance for the said proposition
was placed on several authorities including the following
Privy Council authorities:

1) Subaiya Pandaram Vs. M. Mustafa, AIR 1923
P.C. 175

2) Gnanasaumbanda P. S. Vs. Velu P., 27
Indian Appeals 69

3) Damodar Das Vs. Adhikari Lakhan Das, 37
Indian Appeals 147.

172

The leading case of Calcutta High Court reported in
Nilmony Singh Vs. J. Roy, (1896) 23 Cal 536 was also
referred.

In Naurangi Lai Vs. Ram Charan Das, AIR 1930
Patna 455 (DB), the above authorities of Allahabad
High Court and Oudh have been followed and it has
been held that an idol cannot be treated to be minor for
the purposes of Sections 6 & 7 of Limitation Act. In the
said case, Hon'ble Justice Fazal AN (who was later on
elevated to the Federal Court and after the enforcement
of the Constitution was sworn in as judge of the
Supreme Court) discussed several authorities (49 in
number) and held that he was taking the said view
against his initial tentative view. Few authorities of
different High Courts taking contrary view were also
noticed in the said judgment of the Patna High Court.
The above authorities of the Privy Council and the
leading authority of Calcutta High Court Nilmony Singh,

173

supra were also considered.

Even though the said judgment was reversed by
Privy Council in Ram Charan Das Vs. Naurangi Lai
and Ors. AIR 1933 P.C.75 however the principle that
property could be lost by adverse possession was not
reversed. The Privy Council disagreed only on the
question of starting point of limitation.

Similar view was taken in Radha Krishan Das Vs.
Radha Raman, AIR 1949 Orissa 1. It was held in Para-
15, after discussing several authorities that idol was not
minor and its property could be lost (or it could acquire
property) through adverse possession.

Calcutta High Court in Surendra Vs. Sri Sri
Bhubaneswari, AIR 1933 Cal 295 held that the doctrine
that idol is perpetual minor is extravagant in view of
Privy Council authority of Damodar Das, supra. The
judgment of Surendra was confirmed by Privy Council
in Sri Sri Iswari Bhubaneshwari Thakurani Vs. Brojo
Nath Dey and others, AIR 1937 P.C. 185.

174

In the following authorities of the Supreme Court
even though question of perpetual minority of idol was
not considered but it was held that idol or math could
lose title through adverse possession. Obviously if idol is
treated to be minor (perpetual), there arises no question
of losing property through adverse possession.

In Dr. Guranditta Mai Kapur Vs Amar Das, AIR
1965 SC 1966, hereinafter referred to as Dr. G.M.
Kapur, 1965 (by a Bench of three Hon'ble Judges), the
view that adverse possession cannot start unless there
is a Mahanth or Shabait was not approved. This
argument was referred to as novel contention in Para-
1 1 . In Para-12 of the said judgment, it was held that the
appellant had completed more than 12 years of adverse
possession against debutter property, hence suit for
possession was bound to be dismissed. Para-12 is
quoted below:-

175

"12. We may point out that a Mahant of an
Akhara represents the Akhara and has both the
right to institute a suit on its behalf as also the duty
to defend one brought against it. The law on the
subject has been stated very clearly at pp. 274 and
275 in Mukherjea's Hindu Law of Religious and
Charitable Trust, 2nd. ed. It is pointed out that in
the case of an execution sale of debutter property it
is not the date of death of the incumbent of the Mutt
but the date of effective possession as a result of
the sale from which the commencement of the
adverse possession of the purchaser is to be
computed for the purposes of Art. 144 of the
Limitation Act. This is in fact what the Privy Council
has laid down in Sudarsan Das v. Ram Kripal, 77
Ind App 42 : (Al R 1950 PC 44). A similar view has
been taken by the Privy Council in Subbaiya v.
Mustapha, 50 Ind App 295 : (AIR 1923 PC 175).
What has been said in this case would also apply
to a case such as the present. Thus if respondent
No. 2 could be said to have represented the Akhara
in the two earlier suits, decrees made in them
would bind the respondent No. 1 as he is successor
in office of respondent No. 2. On the other hand if
respondent No. 2 did not represent the Akhara, the

176

possession of the appellant under the decree
passed in these suits would clearly be adverse to
the Akhara upon the view taken in the two
decisions of the Privy Council just referred to. The
first respondent's suit having been instituted after
the appellant has completed more than 12 years of
adverse possession must, therefore, be held to be
barred by time. For these reasons disagreeing with
the courts below we set aside the decrees of the
courts below and instead dismiss the suit of
respondent No. 1 with costs in all the courts. "

In Sarangadeva Periya Matam Vs. R. Goundar,
AIR 1966 SC 1603 (hereinafter referred to as S.P.
Matam, 1966), by a Bench of three Hon'ble Judges, it
has been held that even in the absence of a de-jure or
de-facto mathadhipathi running of limitation is not
suspended. In the said authority, it was held that plaintiff
had acquired title by prescription against debutter
property. Paragraphs No.6 & 10 of the said authority are
quoted below:-

"6. We are inclined to accept the respondents'

177

contention. Under Art. 144 of the Indian Limitation
Act, 1908, limitation for a suit by a math or by any
person representing it for possession of immovable
properties belonging to it runs from the time when
the possession of the defendant becomes adverse
to the plaintiff. The math is the owner of the
endowed property. Like an idol, the math is a
juristic person having the power of acquiring
owning and possessing properties and having the
capacity of suing and being sued. Being an ideal
person, it must of necessity act in relation to its
temporal affairs through human agency. See
Babajirao v. Luxmandas, (1904) ILR 28 Bom 215
(223). It may acquire property by prescription and
may likewise lose property by adverse possession.
If the math while in possession of its property is
dispossessed to if the possession of a stranger
becomes adverse, it suffers an injury and has the
right to sue for the recovery of the property. If there
is a legally appointed mathadhipathi, he may
institute the suit on its behalf; if not, the de facto
mathadhipathi may do so, see Mahadeo Prasad
Singh v. Karia Bharti, 62 Ind App 47 at p. 51: (AIR
1925 PC 44 at p. 46), and where, necessary, a
disciple or other beneficiary of the math may take

178

steps for vindicating its legal rights by the
appointment of a receiver having authority to sue
on its behalf, or by the institution of a suit in its
name by a next friend appointed by the Court. With
due diligence, the math or those interested in it
may avoid the running of time. The running of
limitation against the math under Art. 144 is not
suspended by the absence of a legally appointed
mathadhipathi; clearly, limitation would run against
it where it is managed by a de facto mathadhipathi.
See Vithalbowa v. Narayan Daji, (1893) ILR 18
Bom 507 at p. 511, and we think it would run
equally if there is neither a de jure nor a de facto
mathadhipathi.

10. We hold that by the operation of Art. 144 read
with S. 28 of the Indian Limitation Act, 1908 the title
of the math to the suit lands became extinguished
in 1927, and the plaintiff acquired title to the lands
by prescription. He continued in possession of the
lands until January, 1950. It has been found that in
January, 1950 he voluntarily delivered possession
of the lands to the math, such delivery of
possession did not transfer any title to the math.

179

The suit was instituted in 1954 and is well within
time. "

The Privy Council in 31 Indian Appeals 203,
Jagadindra Roy Vs. Hemantah had held that if the
Shabait of an idol was minor, then he would get the
benefit of Section 7 of Limitation Act and fresh starting
point for limitation would be available to him after
attaining majority. This authority clearly meant that the
Privy Council was of the view that the idol cannot get
benefit of Section 7 of Limitation Act (otherwise there
was absolutely no question of extending the benefit of
the said section to the Shabait). Even otherwise a minor
can not be appointed guardian of an other minor. In
Bishwanath's (1967) case this authority has been
referred to. In the authority of the Supreme Court of S.P.
Matam (1966), the said view of the Privy Council was
slightly doubted and it was held in Para-8 by the
Supreme Court as follows:

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"8. In Jagadindra Roy's case, (1904) ILT 32
Cal 129 (PC), the dispossession of the idol's lands
took place in April 1876. The only shebait of the
idol was then a minor, and he sued for recovery of
the lands in October 1889 within three years of his
attaining majority. The Privy Council held that the
plaintiff being a minor at the commencement of the
period of limitation was entitled to the benefit of S.
7 of the Indian Limitation Act, 1877 (Act XV of
1877) corresponding to S. 6 of the Indian Limitation
Act, 1908, and was entitled to institute the suit
within three years of his coming of age. This
decision created an anomaly, for, as pointed out by
Page, J. in ILR 51 Cal 953 at p. 958: (AIR 1925 Cal
140 at pp. 142-143), in giving the benefit of S. 7 of
the Indian Limitation Act, 1877 to the shebait, the
Privy Council proceeded on the footing that the
right to sue for possession is to be divorced from
the proprietary right to the property which is vested
in the idol. We do not express any opinion one way
or the other on the correctness of Jagadindra Nath
Roy's case, (1904) ILR 32 Cal 129 (PC). For the
purposes of this case, it is sufficient to say that we
are not inclined to extend the principle of that case.
In that case, at the commencement of the period of

181

limitation there was a shebait in existence entitled
to sue on behalf of the idol, and on the institution of
the suit he successfully claimed that as the person
entitled to institute the suit at the time from which
the period is to be reckoned, he should get the
benefit of S. 7 of the Indian Limitation Act, 1877. In
the present case, there was no mathadhipathi in
existence in 1915 when limitation commenced to
run. Nor is there any question of the minority of a
mathadhipathi entitled to sue in 1915 or of applying
S. 6 of the Indian Limitation Act, 1908."

It is interesting to note that Hon'ble K. Subba Rao,
J. was a member of the Bench, which decided S.P.
Matam's case (1966) as well as of the bench which
decided Bishwanath (1967) by two judges. The
judgment of Bishwanath was delivered by Hon'ble
Subba Rao, C.J. as by that time he had become Chief
Justice of the Supreme Court.

In Bishwanath (1967), the only point, which was
decided was regarding right of worshipper to file suit for
recovery of immovable property wrongly sold by the

182

Shabait. On that point almost all the authorities of
different High Courts were considered and two cases
which took contrary view, i.e. Kunj Behari Chandra
and others Vs. Sri Sri Shyam Chand Jiu Thakur and
others, AIR 1938 Patna 394 and Artatran Alekhagadi
Brahma and others Vs. Sudersan Mohapatra and
others, AIR 1954 Orissa 11 were specifically overruled.
Eight cases, three by Madras High Court, two by
Allahabad High Court, one each by Bombay, Calcatta
and Patna High Courts taking the view approved by the
Supreme Court were also mentioned.

In view of this, it cannot be said that the Supreme
Court in Biswanath's case just by one sentence in
Para-10 (quoted above) intended to impliedly overrule
scores of cases of different High Courts and of Privy
Council on the question that idol is not minor (perpetual
minor) for the purposes of limitation and its property
(debutter property) can also be lost through adverse
possession/ prescription.

183

In two judgments of the Supreme Court delivered
one and two years before the judgment of
Bishwanath's case, i.e. Dr. G.M. Kapur (1965) supra
and S.P. Matam (1966) supra three judges Benches of
Supreme Court had already taken the view that idol's
property could be lost through adverse possession.
Hon'ble Subba Rao, J., who dictated the judgment of
the Bishwanath' case was one of the judges of S.P.
Matam's case, three Judges Bench. It cannot therefore
be said that the bench which decided Bishwanath's
case (1966) was not aware of the two earlier cases,
both by benches of three judges.

Moreover in Bishwanath's case, B. K. Mukherjee's

observation in "The Hindu Law of Religious and

Charitable Trust" 2nd Edition was quoted with approval

in Para-1 1 , which is quoted below:

"11. There are two decisions of the Privy
Council, namely, Pramatha Nath Mullick v.
Pradyumna Kumar Mullick, 52 Ind App 245: (AIR

184

1925 PC 139) and Kanhaiya Lai v. Hamid AH, 60
Ind App 263: (AIR 1933 PC 198 (1)), wherein the
Board remanded the case to the High Court in
order that the High Court might appoint a
disinterested person to represent the idol. No doubt
in both the cases no question of any deity filing a
suit for its protection arose, but the decisions are
authorities for the position that apart from a
Shebait, under certain circumstances, the idol can
be represented by disinterested persons. B. K.
Mukherjea in his book "The Hindu Law of Religious
and Charitable Trust" 2nd Edn., summarizes the
legal position by way of the following propositions,
among others, at p. 249 :

"(1) An idol is a juristic person in whom the title to
the properties of the endowment vests. But it is
only in an ideal sense that the idol is the owner. It
has to act through human agency, and that agent is
the Shebait, who is, in law, the person entitled to
take proceedings on its behalf. The personality of
the idol might, therefore, be said to be merged in
that of the Shebait.

(2) Where, however, the Shebait refuses to act for
the idol, or where the suit is to challenge the act of
the Shebait himself as prejudicial to the interests of

185

the idol, then there must be some other agency

which must have the right to act for the idol. The

law accordingly recognises a right in persons

interested in the endowment to take proceedings

on behalf of the idol. "

This view is justified by reason as well by

decisions."

B.K. Mukherjee in the same book, a few pages

before, opined that an idol is not perpetual minor for the

purposes of limitation:

"A Hindu Idol is sometimes spoken of as a
perpetual infant, but the analogy is not only
incorrect but is positively misleading. There is no
warrant for such doctrine in the rules of Hindu law
and as was observed by Rankin, C.J. In Surendra
V. Sri Sri Bhubaneswari, it is an extravagant
doctrine contrary to the decision of the Judicial
Committee in such cases as Damodar Das Vs.
Lakhan Das. It is true that the deity like an infant
suffers from legal disability and has got to act
through some agent and there is a similarity also
between the powers of the shebait of a deity and

186

those of the guardian of an infant But the analogy

really ends there. For purposes of Limitation Act the

idol does not enjoy any privilege and regarding

contractual rights also the position of the idol is the

same as that of any other artificial person. The

provisions of the Civil Procedure Code relating to

suits by minors or persons of unsound mind do not

in terms at least apply to an idol; and to build up a

law of procedure upon the fiction that the idol is an

infant would lead to manifestly undesirable and

anomalous consequences."

(In first edition it is on page 258 and in III
edition it is on pages 201 and 202)

The Supreme Court did not question that opinion. It
cannot therefore be assumed that Supreme Court in
Bishwanath's case just by one sentence intended to
lay down that for the purposes of limitation idol was to
be treated as perpetual minor.

Even if it is assumed that Supreme Court in
Bishwanath's case held that for the purposes of
limitation idol is perpetual minor still the said view by a
Bench of two Hon'ble Judges being directly in conflict

187

with two earlier authorities of the Supreme Court each
by a Bench of three Hon'ble Judges, i.e. Dr. G.M.
Kapur (1965) and S.P. Matam (1966) cannot be said to
be a correct law to be followed. The two authorities of
1965 and 1966, both being by three judges are binding
upon us in preference to two Judges authority of
Bishwanath (1967) if it is assumed that in the authority
of Bishwanath, it was held that for the purposes of
limitation idol is to be treated as minor (perpetual minor).
The privy counsel in Mosque known as Masjid
Shahid Ganj and others Vs. Shiromani Gurdwara
Parbandhak Committee, Amritsar and another AIR
1940 P.C. 116 has held that both Muslim as well Hindu
religious properties may be lost by adverse possession.
"But there has never been any doubt that the property of
a Hindu religious endowment - including a thakurbari is
subject to the law of limitation" (p 122 col.1). The
constitution bench of the Supreme Court in Ismail
Farooqui (1994) supra has approved the said authority

188

of the Privy Council and in para 82 (of SCC) has
equated mosque with other religious places like Church
temple etc. in the matter of limitation/adverse
possession and acquisition.

Accordingly, it is held that idol/deity is not minor
(perpetual) for the purposes of limitation and debutter
property may be lost through adverse possession.

Accordingly, suit no. 3, 4 and 5 are held not to be
barred by limitation.

II- Res-judicata and/or admissibility of
judgment and assertions made or omitted to be
made in the pleadings of Suit no.61/280 of 1885

Issues No.7, 7(b), 7(c), 7(d) & 8 of Suit No.4,
Issues No.5(a), 5(b), 5(c) & 5(d) of Suit No.1 ,
Issue No.23 of Suit No.5

It has strenuously been argued by the plaintiffs of

Suit no.4 that the judgment in the above suit operates as

res-judicata. Details of pleadings and the judgment in

the said suit have been given in the introduction part of

189

this judgment. Section 11 C.P.C. alongwith Explanation
IV and VI is quoted below:-

11. Res judicata.- No Court shall try any suit or
issue in which the matter directly and substantially
in issue has been directly and substantially in issue
in a former suit between the same parties, or
between parties under whom they or any of them
claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in
which such issue has been subsequently raised,
and has been heard and finally decided by such
Court.

Explanation I not quoted

Explanation II not quoted

Explanation III not quoted

Explanation IV- Any matter which might and ought
to have been made ground of defence or attach in
such former suit shall be deemed to have been a
matter directly and substantially in issue in such
suit.

Explanation V not quoted

Explanation VI.- Where persons litigate bona fide in
respect of a public right or of a private right claimed
in common for themselves and others, all persons
interested in such right shall, for the purposes of
this section, be deemed to claim under the persons
so litigating.

The first and foremost question is to ascertain that

190

what was the matter which was finally decided in the suit
of 1885. In-fact the judgment in the said suit did not
decide anything substantially. The only thing which was
decided was that in view of peculiar topography
(worshipping places of both the communities situate
within the same compound/boundary wall and having
common entrance) and due to strong likely hood of riots
of very high level between the two communities the
plaintiff of the suit Mahant Raghubar Dass could not be
permitted to raise construction over the chabootra.
Ultimately, in the final judgment, it was held that status
quo (order which is almost invariably passed only as an
interim order) should be maintained. The suit was
therefore dismissed. Refusal to decide the controversy
is the actual decision in the said suit. In some moments
of weakness I also thought that I should also adopt the
same course. However, I resisted the temptation
promptly. Accordingly, as virtually nothing was decided
in the said suit hence main part of the Section-1 1 C.P.C.

191

is not attracted.

It was specifically argued by learned counsel for the
Muslim parties (plaintiffs in suit no-4 and defendants in
other suits) that Explanation IV to Section-11 was
squarely attracted. Elaborating the argument they
argued that the plaintiff of the suit of 1885 might and
ought to have asserted that the portion which was
shown in the map annexed with the plaint as Mosque
and in possession of Muslims was not a Mosque and
not in possession of Muslims. However, as the plaintiff
of the said suit categorically admitted that the
constructed portion and the inner court yard was a
Mosque and in possession of Muslims, hence there was
no sense in asserting otherwise. Accordingly, in my
view Explanation IV is also not attracted.

In view of the above findings the question and
occasion to decide applicability of Explanation VI do not
arise.

Now the question comes regarding admissibility of

192

the judgment particularly observations made in the
judgment and the assertions made and omitted to be
made and the admissions in the pleadings of the said
suit. Normally question of admissibility of a piece of
evidence is not covered by any issue. In the instant
suits also no such issue has been framed. However, as
the judgments and the pleadings of the said suit if
admissible will have lot of bearing on several issues
hence it is appropriate to decide their admissibility or
otherwise at this juncture. In this regard two Sections of
Evidence Act are relevant i.e. Section 13 and 42. The
said sections and Section 43 are quoted below:-

13. Facts relevant when right of custom is in
question.-- Where the question is as to the
existence of any right or custom, the following facts
are relevant—

(a) any transaction by which the right or custom in
question was created, claimed, modified,
recognized, asserted, or denied, or which was
inconsistent with its existence;

(b) particular instances in which the right or
custom was claimed, recognized, or exercised or in

193

which its exercise was disputed, asserted or
departed from.

42. Relevance and effect of judgments, orders
or decrees, other than those mentioned in
section 41.-- Judgments, orders or decrees other
than those mentioned in section 41, are relevant if
they relate to matters of a public nature relevant to
the enquiry; but such judgments, orders or decrees
are not conclusive proof of that which they state.

43. Judgments, etc., other than those
mentioned in sections 40 to 4, when relevant-
Judgments, orders or decrees, other than those
mentioned in sections 40,41 and 42, are irrelevant,
unless the existence of such judgment, order or
decree, is a fact in issue, or is relevant under some
other provisions of this Act.

The previous judgment itself may or may not be
covered under the definition of the word transaction
used in Section 13 however, the case set up by the
parties in the previous litigation and its recitation in the
judgment obviously fall within the ambit of the word
'transaction'. Even otherwise if it is assumed that a
previous judgment does not fall under Section 13 of
Evidence Act on its strict, narrow construction still if the
judgment is relevant under Section 42 then it may be

194

taken into consideration and reliance may be placed

thereupon. Section 42 is squarely applicable as the

earlier judgment releated to matters of a public nature.

In State of Bihar vs. Radha Krishna Singh A.I.R.

1983, S.C. 684 it was held that previous judgment not in

between the parties to the subsequent litigation is not

admissible under Section 13 of Evidence Act.

Para 121:- Some Courts have used Section 13
to prove the admissibility of a judgment as coming
under the provisions of S.43, referred to above.
We are however, of the opinion that where there is
a specific provision covering the admissibility of a
document, it is not open to the court to call into aid
other general provisions in order to make a
particular document admissible. In other words if a
judgment is not admissible as not falling within the
ambit of Sections 40 to 42, it must fulfil the
conditions of S.43 otherwise it cannot be relevant
under S.13 of the Evidence Act. The words "other
provisions of this Act" cannot cover S.13 because
this section does not deal with judgments at all.

However, in this regard some previous authorities

of the Supreme Court were not taken into consideration.

In "Tirumala Tirupati Devasthanams v. K. M.

Krishnaiah" AIR 1998 SUPREME COURT 1132 it was

195

held that a previous judgment in which plaintiff of the

subsequent suit was not party is admissible under

Section 13 of the Evidence Act. In this authority earlier

Supreme Court authorities were also considered.

Para 8: It was argued by the learned counsel for
the plaintiff respondent that the earlier judgment in
O.S. 51 of 1937dated 15.6.1942 was rendered in
favour of the TTD against Hathiramji Mutt, that
plaintiff was not a party to that suit and hence any
finding as to TTD's title given therein is not
admissible as evidence against the present plaintiff
in this suit.

Para-9 In our view, this contention is clearly
contrary to the rulings of this Court as well as those
of the privy Council. In Srinivas Krishna Rao Kango
vs. Narayan Devji Kango & Others [AIR 1954 SC
379], speaking on behalf of a Bench of three
learned Judges of this Court, Venkatarama Ayyar,
J. held that a judgment not inter parties is
admissible in evidence under section 13 of the
Evidence Act as evidence of an assertion of a right
to property in dispute. A contention that judgments
other than those falling under sections 40 to 44 of
the Evidence Act were not admissible in evidence
was expressly rejected. Again B.K. Mukherjea, J.
(as he then

was) speaking on behalf of a Bench of four learned
Judges in Sital Das vs. Sant Ram & Others [AIR
1954 SC 606] held that a previous judgment no
inter partes, was admissible in evidence under
section 13 of the Evidence Act as a 'transaction' in
which a right to property was 'asserted' and

196

'recognised'. In fact, much earlier, Lord Lindley held
in the Privy Council in Dinamoni vs. Brajmohini
[1902] [ILR 29 Cal. 190 (198) (PC)] that a previous
judgment, not inter partes was admissible in
evidence under Section 13 to show who the parties
were, what the lands in disputer were and who was
declared entitled to retain them. The criticism of the
judgment in Dinamoni vs. Brajmohini and Ram
Ranjan Chakerbati vs. Ram Narain Singh [1895 ILR
22 Cal 533 (PC)] by sir John Woodroffe in his
commentary o the Evidence Act (1931, P 181) was
not accepted by Lord Blanesburgh in collector of
Gorakhpur vs. Ram Sunder [AIR 1934 PC 157 (61
I A 286)].

Unfortunately in this authority the authority of State
of Bihar vs. R.K.Singh (1983), supra was not
considered. Both the authorities are by two Hon'ble
Judges each. Similarly in R.K.Singh's (1983) authority
the earlier two Supreme Court authorities of 1954 one
by three Hon'ble Judges and the other by four Hon'ble
Judges (both referred to in Tirumala Tirupati
Devasthanams (1998) authority, Supra) were not
considered.

In any case even if Section 13 of the Evidence Act
is ignored, the judgment of 1885 is admissible under

197

Section 42 of the Evidence Act.

In my opinion the more important question which is
to be decided is as to whether the admissions and
assertions made and omitted to be made in the
pleadings of 1885 suit are admissible or not. There
cannot be any doubt that pleadings are covered by the
definition of 'transactions' as used under Section 13 of
Evidence Act. In this regard reference may be made to
Hari Lai vs. Amrik Singh AIR 1978 Allahabad 292
wherein it has been held in para-16 that pleadings in
earlier suit not inter partes are admissible under
Section 13 of Evidence Act. In the same authority it has
also been held that recitals of boundaries in deeds
between third parties are admissible. For the said
proposition reliance was placed upon the following
authorities:-

1. Ms. Katori vs. Om Prakash (AIR 1935
Allahabad 351)

2. Rangayyan v Innasimuthu Mudali (AIR 1956
Madras 226) and

198

3. Natwar vs. Alkhu ((1913) 11 All LJ 139).

In "Harihar Prasad Singh v. Deonarain Prasad"
AIR 1956 SUPREME COURT 305 it has been held that
if in a mortgage deed the land is described as private
land, it is not admission of mortgagee but it is admissible
under Section 13 of Evidence Act particularly as
mortgagee was claiming under the mortgage deed. In
the said authority it has also been held that any
transaction etc. which is ante litem motam (before the
start of the dispute or the lis) is more reliable than post
litem motam (after the start of the dispute/litigation)
transaction.

As far as the question of admissibility of the
judgment of 1885 under Section 42 of Evidence Act is
concerned, reference may be made to the Supreme
Court authority reported in "Virupakshayya
Shankarayya v. Neelakanta Shivacharya
Pattadadevaru" AIR 1995 SUPREME COURT 2187.
In the said case the dispute was regarding Padadayya

199

of the Math. There was an earlier decision of Privy
Council of the State in that regard. The Supreme Court
held that even though explanation VI to Section 11
C.P.C. was not attracted as in the earlier litigation
present plaintiff was not party however earlier judgment
was admissible under Section 42 of Evidence Act.
Reversing both the judgments of the courts below the
Supreme Court passed the judgment in accordance with
the earlier judgment of Privy Council of the State.

It is therefore held that judgment of 1885 suit,
admissions and assertions made or omitted to be made
in the pleading of the said suits are admissible under
Section 42 Evidence Act as well as Section 13 read with
Section 42 of the Evidence Act.

Ill- When the structure in the disputed premises
was constructed and by whom and what was its
nature:-

This point covers the following issues:
Issue No.1, 1(a) & 1-B(c) of Suit No.4,

200

Issue No. 6 of Suit No.1,
Issues No.1 & 5 of Suit No.3,
Issues No.9 & 1 5 of Suit No.5

Muslim Parties particularly Waqf Board in its plaint of
Suit No. 4 halllve asserted that the disputed premises
including the constructed portion therein was a mosque
constructed by Babar (or on his orders) in 1528. Babar
came to India in 1526 and died in 1530. All the Hindu
parties have pleaded either solely or in the first instance
that the premises in dispute was never constructed as
mosque either by Babar or anyone else. However, some
of the Hindu parties in the alternative have pleaded that
some attempts were made during the period of Babar, to
convert the existing temple into a mosque but the attempts
did not succeed/ fully succeed. The second alternative
case taken by most of the Hindu parties is that even if, it
was assumed/ proved that the premises in dispute or the
constructed portion and the inner courtyard was a mosque
still it ceased to be a mosque since 1934 when during a
riot the same was substantially damaged and that

201

thereafter no Muslim offered prayer/ namaz in the said

premises.

Paras 23 & 24 of Suit No. 5 deal with the construction

at the premises in dispute. These paragraphs also do not

state anything categorically. First few lines of paragraph

No. 23 are quoted below:

"The books of history and public records of
unimpeachable authenticity, establish indisputably
that there was an ancient Temple of Maharaja
Vkramaditya's time at Sri Rama J an ma Bhumi,
Ayodhya. That Temple was destroyed partly and an
attempt was made to raise a mosque thereat, by the
force of arms, by Mir Baqi, a commander of Baber's
hordes. The material used was almost all of it taken
from the Temple including its pillars which were
wrought out of Kasauti or touch-stone, with figures of
Hindu gods and godesses carved on them. There
was great resistance by the Hindus and many battles
were fought from time to time by them to prevent the
completion of the mosque. To this day it has no
minarets, and no place for storage of water for
Vazoo. Many lives were lost in these battles. The last
such battle occurred in 1855. Sri Rama Jan ma
Bhumi, including the building raised during Babar's

202

time by Mir Baqi, was in the possession and control
of Hindus at that time. "

Thereafter, an extract from 1928 Faizabad Gazetteer
has been quoted wherein it was mentioned that in 1528,
Babar came to Ayodhya and destroyed the ancient temple
and on its site built a mosque still known as Babar's
Mosque. In Para-24 of the plaint, it is mentioned that such
a structure (referred to in para-23 of the plaint) raised by
the force of arms on land belonging to the Plaintiff Deities,
after destroying the ancient Temple situate thereat, with its
materials including the Kasauti pillars with figures of Hindu
gods carved thereon, could not be a mosque and did not
become one inspite of the attempts to treat it as a mosque
during the British rule after the annexation of Avadh.
Thereafter, in sub-paras (A) to (G), it has been mentioned
that the building so erected could not be a mosque under
Muslim Law. In Para-26, it has been mentioned that at any
rate no payers have ever been offered in the building in
dispute recorded as 'Janmasthan Masjid' during the British

203

times. Thereafter, it is mentioned that after destruction of
substantial parts of the domes of the building in the year
1934, no one dared to offer namaz therein even though
building was got rebuilt by the Government.

The Muslim parties in support of their assertion
regarding construction of mosque by Babar have heavily
relied upon two inscriptions. According to them, one was
at the pulpit and the other on the main Gate. However,
admittedly inscriptions were either totally destroyed or
badly damaged in the riots of 1934 and were replaced.
Muslim parties also claimed that the replaced inscriptions
were exactly the same, which existed since before. The
original inscriptions are reproduced in A.S.I. Report titled
as The Sharqi Architecture of Jaunpur by A. Fuhrer
published in 1889 and in Babar Nama translated in
English by A. S. Beveridge (first published in compact
book form in 1921). Inscriptions are also reproduced in
Epigraphia Indica Arabic and Persian Supplement 1964
and 1965 published by A.S.I. However, the authenticity
of these three inscriptions/ copies is highly doubtful.

204

Moreover A.S.I. Epigraphia Indica of 1964 and 1965 being
post litem motam cannot be given much weight vide State
of Bihar Vs. R.K. Singh, AIR 1983 SC 684 & Harihar
Prasad Singh Vs. D. Prasad, AIR 1956 SC 305. The

manner in which Epigraphia Indica 1964 and 1965 and the
book claim to have obtained the copies of the originals is
such that not much reliance can be placed thereupon.
There is also vast variation in different inscriptions/copies.
It is alleged that the inscriptions were in Persian verses
denoting the date of construction (in Parsian language
every alphabet is allotted a number and addition of the
numbers of alphabets of all the words denotes the year).
The names of some persons are also selected in such
manner that adding the numbers of the alphabets of their
names, their year of birth is ascertained. (Such names are
called historical names). Relevant words in the Persian on
one of the copies of the inscription are stated to denote
935 Hijari corresponding to 15.09.1528 to 05.09.1929 A.D.
However, as the inscriptions given in the above book and
the reports have not been proved to be true copies of

205

originals and they cannot be termed as authentic, hence
on the basis of these inscriptions alone it cannot be held
that either the building was constructed by or under orders
of Babur or it was constructed in 1528. In this regard
detailed reasons have been given by my learned brother
S. Agarwal, J. with which I fully agree.

However, there are several documents which indicate
that at least since the middle of 18 th Century, the mosque
was popularly known as Babari Masjid. It is mentioned as
such in several Gazetteers and Municipal and official
records and different applications filed before different
authorities for different purposes. Most of the parties in
their pleadings as well as evidence have stated that the
mosque was constructed by or under orders of Babar. No
one has pleaded that if there was a mosque on the
premises in dispute then it was constructed during the
period of any other ruler except Babar.

In one of the copies of the inscriptions, it is mentioned
that Mir Baqi under orders of Babar constructed or had
constructed a mosque. Babarnama a diary maintained by

206

Babur has extensively been quoted during arguments
particularly its translation by A. S. Beveridge. Babarnama
was originally written in Turkish language and was
thereafter translated in Persian. Thereafter, it was
translated in several languages including English, Urdu
and Hindi. However, Babar has himself mentioned that
some pages of his diary were lost in a storm. The lost
pages include the pages from 02.04.1528 to 18.09.1928.
In the pages of 28 th March & 2 nd April, 1528, it is
mentioned that Babar had reached towards other side of
the River Sarju/ Ghaghara and had gone for hunting on
02.04.1528 It has also been argued that in entire
Babarnama, there is no mention of any person by the
name of Mir Baqi.

As relevant pages of Babar's diary/ Babarnama are
missing, hence no light can be thrown by it on the
question as to whether the mosque in dispute was
constructed by Babar or not.

Sri P.N. Mishra, learned counsel for defendant No. 20
in Suit No. 4 very strenuously argued that Babar was such

207

a person who could not construct a mosque either after
demolishing a temple or at a place which was held sacred
by Hindus. Learned counsel has further argued that it was
Aurangzeb who attempted to demolish a temple, however
his forces succeeded only in part and could only damage
to some extent the existing temple and within few days
thereafter Hindus reoccupied the same. However, in the
written statement filed by Defendant No. 20 no such case
has been taken.

Joseph Tieffenthaler also mentioned that the mosque
was constructed by Aurangzeb after demolition of temple,
however immediately thereafter he adds that according to
some, it was done by Babur (He also mentions about
platform on the left called Bedi i.e. the cradle). The period
when Joseph Tieffenthaler visited Ayodhya (1766-71) was
about 60 years after the death of Aurangzeb. If any such
thing had been done by Aurgangjeb about 60 to 100 years
before, it was such an important event that it should not
have faded from the memories of the people of Ayodhya.
Several such persons at the time of visit of Joseph

208

Tieffenthaler must have been there who should have
heard it as first hearsay, i.e. from their fathers, uncles etc.

Sri Jadunath Sarkar has written a voluminous book
on Aurangzeb in early 20 th Century. The Book is
considered to be quite authentic. In the said book Sri
Sarkar has been extremely critical of religious policy of
Aurangzeb and has described him as religious bigot and
fanatic. He has mentioned that Aurangzeb demolished
several temples. In Volume-3, Appendix-5, he has given
list of all the temples which according to him were
demolished by Aurangzeb. There is absolutely no mention
of any such demolition at Ayodhya. There is no mention
that in Ayodhya Aurangzeb constructed any mosque and
that also at a place, which was held sacred by the Hindus.

William Finch a foreign traveller came to India in 1608
and remained here till 1611. He wrote extensive accounts
of his travels in India. There is no mention of any mosque
in his account relating to Ayodhya. Similarly in Ain-e-
Akbari compiled by Abul Fazal during Akbar's period there
is no mention of any mosque. However, omission of any

209

mosque in both these books does not disprove existence

of mosque. These two books do not purport to give details

of all the religious places particularly of mosques in any

particular area.

The first Gazetteer which mentions something about

Ayodhya is of 1828 by Walter Hamilton. Relevant portion

is quoted below:-

"Pilgrims resort to this vicinity, where the remains of
the ancient city of Oude, and capital of the great
Rama, are still to be seen; but whatever may have
been its former magnificence it now exhibits nothing
but a shapeless mass of ruins. The modern town
extends a considerable way along the banks of the
Goggra, adjoining Fyzabad, and is tolerably well
peopled; but inland it is a mass of rubbish and jungle,
among which are the reputed site of temples
dedicated\\\ to Rama, Seeta, his wife, Lakshman,
his general, and Nan i maun (a large monkey), his
prime minister. The religious mendicants who
perform the pilgrimage to Oude are chiefly of the
Ramata sect, who walked round the temples and
idols, bathe in the holy pools, and perform the
customary ceremonies. "

210

Dr. Buchanen had surveyed eastern parts of the

country including Ayodhya from 1807 to 1816 and had

sent his reports to England. Montgomery Martin

published parts of the said reports in 1838 in a six volume

book titled as "History, Antiquities, Topography and

Statistics of Eastern India". Relevant portion of the same

is quoted below:

if these temples ever existed, not the
smallest trace of them remains to enable us to judge
of the period when they were built; and the
destruction is very generally attributed by the Hindus
to the furious zeal of Aurungzebe, to whom also is
imputed the overthrow of the temples in Benares and
Mathura. What may have been the case in the two
latter, I shall not now take upon myself to say, but
with respect to Ayodhya the tradition seems very ill
founded. The bigot by whom the temples were
destroyed, is said to have erected mosques on the
situations of the most remarkable temples; but the
mosque at Ayodhya, which is by far the most entire,
and which has every appearance of being the most
modern, is ascertained by an inscription on its walls
(of which a copy is given) to have been built by
Babur, five generations before Aurungzebe."

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Thereafter, in the same book, it is mentioned as

follows:-

"The bigot by whom the temples were
destroyed, is said to have erected mosques on the
situations of the most remarkable temples; but the

mosque at Ayodhya, which is by far the most entire,
and which has every appearance of being the most
modern, is ascertained by an inscription on its walls
(of which a copy is given) to have been built by

Babur, five generations before Aurungzebe The

only thing except these two figures and the bricks,
that could with probability be traced to the ancient
city, are some pillars in the mosque built by Babur
These are of black stone, and of an order which I
have seen nowhere else, ... they have been taken
from a Hindu building, is evident, from the traces of
images being observable on some of their bases;
although the images have been cut off to satisfy
the conscience of the bigot."
In the Thornton's gazeteer 1854/1858 reprinted in

1993 by low price publication, about one page has been

devoted to oude (Avadh/Ayodhya). In the said gazetteer

heavy reliance is placed on Buchanan's report (who later

212

on took the name of Hamilton). In Thornton's gazetteer it

is mentioned that Bairagis were managing Hanumangari

and other Hindu mendicants. It is also mentioned that

close to the bank of Ghogra there are extensive ruins said

to be those of the fort of Ram King of Oude hero of the

Ramayan. Thereafter the following observation of

Buchanan has been quoted:

"that the heaps of bricks, although much seems
to have been carried away by the river, extend a
great way; that is, more than a mile in length, and
more than half a mile in width; and that, although vast
quantities of materials have been removed to build
the Mahomedan Ayodha or Fyzabad, yet the ruins in
many parts retain a very considerable elevation; nor
is there any reason to doubt that the structure to
which they belonged has been very great, when we
consider that it has been ruined for above 2,000
years. "

Thereafter Thornton writes as follows:

"The ruins still bear the name of Ramgurh, or "Fort
of Rama;" the most remarkable spot in which is that
from which, according to the legend, Rama took his

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flight to heaven, carrying with him the people of his
city; in consequence of which it remained desolate
until repeopled by Vikramaditya, king of Oojein, half a
century before the Christian era, and by him
embellished with 360 temples. Not the smallest
traces of these temples, however, now remain; and
according to native tradition, they were demolished
by Aurungebe, who built a mosque on part of the site.
The falsehood of the tradition is, however, proved by
an inscription on the wall of the mosque, attributing
the work to the conqueror Baber, from whom
Aurungzebe was fifth in descent. The mosque is
embellished with fourteen columns of only five or six
feet in height, but of very elaborate and tasteful
workmanship, said to have been taken from the ruins
of the Hindoo fanes, to which they had been given by
the monkey-general Hanuman, who had brought
them from Lanka or Ceylon. Altogether, however, the
remains of antiquity in the vicinity of this renowned
capital must give very low idea of the state of arts
and civilization of the Hindoos at a remote period. A
quadrangular coffer of stone, whitewashed, five ells
long, four broad, and protruding five or six inches
above ground, is pointed out as the cradle in which
Rama was born, as the seventh avatar of Vishnu;
and is accordingly abundantly honoured by the

214

pilgrimages and devotions of the Hindoos."

Afterwards it has also been mentioned that Ayodhya
was totally deserted several times and last time it was
rebuilt by Vikramaditya.

However in the preface Thornton has mentioned that
the gazetteer printed in 1858 was based on the Gazetteer
published by him in 1854 with some retrenchment and
insertion of much new matter. The original publication of
1854 has not been filed. It is not possible to know the
extent of addition in relation to 'Oudh' in the 1858
Gazetteer.

Cunningham in Archaeological report 1862-63
mentions about Ayodhya (at Page-322) as follows:

"There are several very holy Brahmanical
temples about Ajudhya, but they are all of modern
date, and without any architectural pretensions
whatever But there can be no doubt that most of
them occupy the sites of more ancient temples that
were destroyed by the Muslims. "

AND

"Close by is the Lakshman Ghat, where his

215

brother Lakshman bathed and about one-quarter of a
mile distant, in the very heart of the city, stands the
Janam Asthan, or "Birth-place temple" of Rama."

He does not mention about construction of mosque
after demolition of temple.

Thereafter, comes a historical sketch of Tehsil
Fyzabad District Fyzabad by P. Carnegy, officiating
Commissioner and Settlement Officer of the District. It
was published in 1870. Carnegy has mentioned that
Ajudhia is to the Hindu what Macca is to the Mahomedan
and Jerusalem to the Jews. It is further mentioned that
ancient city of Ajudhia is said to have covered an area of
48 kos (96 miles). Thereafter, reference to Ram and
Ramayan has been made. Thereafter, it is mentioned that
after the fall of the last of Rama's line, Ajudhia and the
royal race became a wilderness and it was converted into
a jungle of sweet smelling keorah. Thereafter it is
mentioned that Vikramajit restored the neglected and
forest-concealed Ajudhia. Thereafter, it is mentioned that
the most remarkable place was Ramkot "the strong hold of

216

Ramchandar" which covered a large extent of ground and
according to ancient manuscript it was surrounded by 20
bastions" (names of all those bastions are mentioned)

"Within the fort where eight royal mansions where
dwelt the patriarch Dasrath, his wives, and Rama his
deified son one of eight mentioned his mansion as palace
of Kosilla .... his wife of Raja Dasharath. The other one is
mentioned as Janam Asthan (Ram's birth place).
Thereafter, it is mentioned that according to Sir H. Elliot
Bikramajit's constructed 360 temples at Ajudhia on which
only 42 were known to the present generation. It is further
mentioned that as there are but few things that are really
old to be seen in Ajudhia, most of these must be of
comparatively recent restoration. A list of these shrines is
given as Appendix A. Appendix A contains 209 items. The
first item is Janam Asthan which is stated to have been
founded/restored by Ram Das Ji 166 years before.

In the first paragraph of remarks column in the
Appendix-A it is mentioned as follows:

"Great astonishment has been expressed at the

217

recent vitality of the Hindu religion as Ajudhia and it
was to test the extent of this chiefly that with no
small amount of labour, this statement has been
prepared. As the information it contains may be
permanently useful I have considered it well to give it
a place here. This information is as correct as it can
now be made, and that is all that I can say. "

Thereafter, comes the most emphasised portion of

Carnegy's historical sketch under the title 'the Janmasthan

and other temples' which is quoted below:

The Janmasthan and other temples - It is locally
affirmed that at the Mahomedan conquest there were
three important Hindu shrines, with but few devotees
attached, at Ajudhia, which was then little other than
a wilderness. These were the "Janmasthan," the
Sargadwar mandir" also known as "Ram Darbar" and
the "Tareta-ke-Thakur".

On the first of these the Emperor Babar built the
mosque which still bears his name, A.D. 1528. On
the second Aurangzeb did the same A.D. 1658-1707;
and on the third that sovereign, or his predecessor,
built a mosque, according to the well known
Mahomedan principle of enforcing their religion on all
those whom they conquered.

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The Janmasthan marks the place where Ram Chandr
was born. The Sargadwar is the gate through which
he passed into Paradise, possibly the spot where his
body was burned. The Tareta-ka-Thakur was famous
as the place where Rama performed a great
sacrifice, and which he commemorated by setting up
there images of himself and Sita.
Babar's mosque - According to Leyden's memoirs
of Babar that Emperor encamped at the junction of
the Serwa and Gogra rivers two or three kos east
from Ajudhia, on the 28 th March 1528, and there he
halted 7 or 8 days settling the surrounding country. A
well known hunting ground is spoken of in that work,
7 or 8 kos above Oudh, on the banks of the Surju. It
is remarkable that in all the copies of Babar's life now
known, the pages that relate to his doings at Ajudhia
are wanting. In two places in the Babari mosque the
year in which it was built 935 H., corresponding with
1528 A.D. is carved in stone, along with inscriptions
dedicated to the glory of that Emperor.
If Ajudhia was then little other than a wild, it must at
least have possessed a fine temple in the
Janmasthan; for many of its columns are still in
existence and in good preservation, having been
used by the Musalmans in the construction of the
Babari Mosque. These are of strong close-grained

219

dark slate-colored or black stone, called by the
natives Kasoti (literally touch-stone,) and carved with
different devices. To my thinking these strongly
resemble Budhist pillars that I have seen at Benares
and elsewhere. They are from seven to eight feet
long, square at the base, centre and capital, and
round or octagonal intermediately.
Hindu and Musalman differences- The
Janmasthan is within a few hundred paces of the
Han u man Garhi. in 1855 when a great rupture took
place between the Hindus and Mahomedans, the
former occupied the Hanuman Garhi in force, while
the Musalmans took possession of the Janmasthan.
The Mahomedans on that occasion actually charged
up the steps of the Hanuman Garhi, but were driven
back with considerable loss. The Hindus then
followed up this success, and at the third attempt,
took the Janmasthan, at the gate of which 75
Mahomedans are buried in the "Martyrs' grave"
(Ganj-shahid.) Several of the King's Regiments were
looking on all the time, but their orders were not to
interfere. It is said that up to that time the Hindus and
Mahomedans alike used to worship in the mosque-
temple. Since British rule a railing has been put up to
prevent disputes, within which in the mosque the
Mahomedans pray, while outside the fence the

220

Hindus have raised a platform on which they make
their offerings.

The recording of existing position in a gazetteer is an
important piece of evidence. Recording of local tradition or
belief may also be taken into consideration to some
extent. However when writers of the report in gazetteer
take upon themselves the task of history writing then such
parts are admissible only if the writers are expert
historians. The portion: "built a mosque, according to

the well known Mahomedan principle of enforcing their
religion on all those whom they conquered." in the
second paragraph of the above quoted portion is merely a
view of a person who is neither expert historian nor a
student of religion. Since the British period Aurangzeb is
favourite whipping boy whenever doubt, dispute or
allegation is expressed, raised or made regarding
demolition of temple and construction of a mosque at the
site thereof. If the above observation had been correct, no
temple particularly in villages and small towns would have
survived. Richard M. Eaton in a recent book Temple

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Desecration and Muslim States in Medieval India
published in 2004 by Hope India has mentioned that
subsequent rulers attacked only those religious
places/temples which were support of sovereignty for the
previous rulers. Seeking religious support for sovereignty
was not unknown in olden times to Chritistans, Muslims
and Hindus. The other reason for such dastardly act was
wealth particularly in the form of gold and diamonds
accumulated in the temples. For Babar or Aurangzeb
none of these reasons existed in Ajudhia.

At that time, Englishmen were genuinely suffering
from the delusion that only they could rule India (nay the
entire World) as all others were incompetent, corrupt,
tyrant, intolerant and bigots. To snatch the said
delusion from them was like snatching her cub from a
tigress.

Even though the above three copies of inscriptions
can not be held to be true copies of the original
inscriptions however as noted above inscriptions

222

containing the name of Babar are mentioned even in

Thornton's gazette 1854/58. Carnegi and Nevill in their

Gazetteers have mentioned about these inscriptions.

In the gazetteer of 1905 and 1928 by H.R. Nevill it is

mentioned that in 1528 Babar came to Ajodhya and

destroyed the ancient temple and on its site build mosque

still known as Babar's mosque and the materials of the old

structure were largely employed and many of the columns

are in good preservation which are called Kasauti 7 to 8

feet in length. It is further mentioned that mosque has two

inscriptions one of the outside and the other on the pulpit

giving year of construction as 935 Hijri. This portion has

been quoted in para-23 of the plaint of Suit No. 5 and has

been reproduced in the earlier part of this judgment under

the heading of pleading and sub-heading Suit No. 5.

Thereafter, it is mentioned therein as follows:

"This desecration of the most sacred spot in the
city caused great bitterness between Hindus and
Musalmans. On last occasions the feeling led to
bloodshed and in 1885 an open fight occurred, the
Musalmans occupying the Janamsthan in force and

223

thence making a desperate assault on the Hanuman
Garhi they charged up the steps of the temple, but
were driven back with considerable loss. The Hindu
then made a counter attack and stormed the
Janamasthan at the gate of which 75 Musalmans
were buried."

Thereafter it is mentioned in the same para as

follows:-

"It is said that upto this time both Hindus and
Muslims used to worship in the same building, but
since mutiny an outer enclosure has been put up in
front of the mosque and the Hindus who are
forbidden access to the inner yard, make their
offerings on a platform which they have raised in the
outer one. "

In all the Gazettes, which have heavily been relied
upon by the Hindu parties, it is mentioned that the
constructed portion of the premises in dispute was a
mosque. Tiffin Thaler mentioned that it was a mosque. In
various government records, it is mentioned as mosque.
In the plaint of suit of 1885, it was mentioned as mosque
particularly in the map annexed along with plaint. In the

224

judgments of the said suit (the Trial Court, First Appellate

Court and Second Appellate Court) the structure was

mentioned as mosque. In the report and letters of Sri

K.K.K. Nayer, the then D.M. of Faizabad of December

1949 and in the map prepared by him it was referred as

mosque. In the letters of S.P. Faizabad of December 1949

and February 1950 also same thing was mentioned. In

para 12 of written statement filed in Suit no.1 on behalf of

State of UP. defendant no. 6 on 25.04.1950 by the then

D.M. /Deputy Commissioner, Faizabad Sri G.W. Ugra,

who had succeeded to Sri Nayer as well as in para 12 of

written statement filed by S.P. Faizabad - Defendant no. 9

it is described as mosque. Para 12 was sworn on personal

knowledge in both the written statements. Para-12 of both

the written statements is exactly same and is quoted

below:-

"The the property in suit is known as Babri Mosque
and it has for a long period been in use as a mosque
for the purpose of worship by the Muslims. It has not
been in use as a temple of Sri Ram Chanderji. "

If the structure in the disputed premises was not a

225

mosque then there was absolutely no occasion, reason or
explanation as to why idols were not there prior to
23.12.1949 even though according to the case taken up
by several Hindu parties, it was treated by Hindus to be
place of worship.

It is admitted to the parties and amply proved on
record that in 1856 or 1857, grill/ railing wall was
constructed to bifurcate the constructed portion and the
inner courtyard from the outer courtyard. In Para-26 of
plaint of Suit No. 5 also, it has been admitted that after
annexation of Avadh (1956), boundary wall was raised by
them in the courtyard. This fact is also mentioned in the
judgments of suit of 1855 and various Gazettes. If the
constructed portion had not been mosque there was no
question of separating it from Ram Chabutra. The last but
not the least reason to hold that the constructed portion
was mosque (or part of mosque) is that if it had not been a
mosque, it would not have been demolished by an unruly,
uncontrolled Hindu mob on 06.12.1992.

Accordingly, from the above it is proved that the

226

constructed portion of the premises in dispute was
constructed as a mosque by or under orders of Babar. It
was actually built by Mir Baqui or some one else is not
much material.

A mosque even if its construction remains as a
mosque cannot be treated to be mosque if no prayers are
offered in it and it is in the possession, occupation and use
of non-Muslims as held by the Privy Council in Mosque
known as Masjid Shahid Ganj Vs. S.G.P.C. Amritsar

AIR 1940 P.C. 116 approved in Dr. M. Ismail Farooqi
Vs. Union of India, 1994 (6) S.C.C. 360. Accordingly,
unless it is proved that prayers were being offered in the
premises in dispute, or the Hindus had not exclusively
possessed the constructed portion and inner court yard it
cannot be held to be a mosque or a continuing mosque
uptil 22nd/ 23 rd December, 1949. The case set up and
the argument of some of the Hindu parties that till 1855 no
prayers (Namaz) were offered in the mosque is not at all
acceptable. If a mosque is referred to as mosque in
several gazetteers, books etc. and nothing else is said

227

then it means that it is a mosque in use as such. A
defunct mosque where prayers are not at all offered,
whenever mentioned as mosque, is bound to be further
qualified as defunct and not in use. If construction of
mosque could not be obstructed, how offering of prayer in
it could be obstructed. Moreover, there was absolutely no
sense in dividing the premises in dispute by railing in 1856
or 1857 if Muslims were not offering Namaz in the
constructed portion till then. In the riot of 1855 seventy
Muslims were killed while taking shelter in the premises in
dispute. After such a huge defeat Namaz could not be for
the first time started thereat.

For discontinuance of possession two things are
necessary one is abandonment of possession and the
other is walking in by some one else. Mere abandonment
is not complete discontinuance of possession. In this
regard, Muslim parties have tried to prove that regular
prayers (five times in a day) were being offered in the
premises in dispute until 22 nd December, 1949, however
they have not been able to prove it. In para 22 of written

228

statement by defendants no. 1 to 5 (Muslim parties) in suit
no.1, they have themselves admitted that last prayer
offered in the building in dispute was friday prayer on
16.12.1949. This clearly proves that regular prayers (five
times in a day) were not offered in the premises in dispute
for some time since before 22.12.1949.

The fact that friday prayers were being offered uptill
16.12.1949 is evident from the letter of the S.P., of the
D.M. and the Diary of the D.M. mentioned in the
introduction part of this judgment. For the admissibility of
the report/ diary of D.M. and letters of S.P. and D.M.
reference may be made to the following authorities:-

(i) Baldeo Das vs. Gobind Das AIR 1914 All. 59

In this authority Kotwal's report that who built the
temple in question was held admissible.

(ii) Krishna Nandan Prasad Verma v. The State,
AIR 1958 Patna 166

(iii) Bakhshish Singh Dhaliwal Vs. The State of
Punjab, AIR 1967 SC 752

229

In this authority, it has been held that war diaries
are admissible in evidence even though there inspection
is not permissible.

(iv) Kuar Shyam Pratap Singh v. Collector of
Etawah, representing Rani Rathorni Narain Kunwar
and Ors., AIR 1946 PC 103

In this authority, it has been held that pedigree kept
by court of wards is admissible.

(v) State of Bihar Vs. R.K. Singh, AIR 1983 SC
684

If the Muslims had completely abandoned the
premises in dispute and were not using it even for firday
prayers for decades, years or months before 23.12.1949,
there is no reason or explanation as to why the idol was
not kept inside earlier.

Accordingly, it is held that for some time before
23.12.1949, Muslims were offering only friday prayers in
the premises in dispute. However, since when regular
prayers (five times a day) stopped and only friday prayers

230

were offered has not even been attempted to be proved

by any of the parties. On the contrary, in spite of clear

evidence to the contrary, as discussed above, Muslim

parties in their oral evidence attempted to show that

regular prayers were offered till the night of 22.12.1949

and Hindu parties pleaded and attempted to show in oral

evidence that even friday prayers were never offered or at

least since 1934 were not offered. Some of the Hindu

parties pleaded and attempted to prove that premises in

dispute was never a mosque. Such an attitude by both the

parties in respect of a religious matter is not appreciable.

Accordingly, in such scenario the only finding which

may be recorded is that till 1934 Muslims were offering

regular prayers and since 1934 till 22.12.1949 only friday

prayers in the premises in dispute. However, offering of

only friday prayers is also sufficient for continuance of

possession and use.

IV- Whether the site of the premises in

dispute was treated to be birth-place of Lord Ram
before construction of the mosque and whether
there was any temple standing thereupon, which
was demolished for constructing the mosque: -

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Issues No. 1(b), 11, 14, 19(a), 19(c) & 19(f) of Suit
No.4,

Issue No. 1 ofSuitNo.1,

Issues No.5, 14, 22 & 24 of Suit No.5

It is one of the most important points to be decided

in these suits. It has already been noticed that total area

of premises in dispute is 1482.5 square yards (1500

square yards in round figures) as given in the map

prepared by Sri Shiv Shanker Lai Vakil/ Commissioner

in Suit No.1. During arguments, it was enquired from

almost every learned counsel appearing for different

Hindu parties as to whether according to his party, the

1500 square yards premises in dispute was the Lord

Ram's birth-place/ land (Janam Asthan/ Bhoomi),

nothing but birth-place/ land and the whole birth-place/

land (borrowing from the terminology of oath

administered to a witness before his oral statement;

truth, nothing but truth and the whole truth). Each and

every learned counsel replied in affirmative. Almost all

the learned counsel for Hindu parties argued that as no

232

other place in Ayodhya was worshipped as the birth
place and as Muslims have not been able to point out
any other such place hence premises in dispute is the
birth-place. Some thing was said by a baba (saint) in
December 1949 as noted in the diary of the D.M.
(quoted in Introduction part). This is not the law of
evidence. The burden to prove a fact lies upon the party
who asserts it. If A is sued for injuring some one by his
car and he denies that it was not his car which hit that
person, then A can not be asked to show that which
other car had hit the person concerned.

At this juncture, it may also be noted that Sri
Zafaryab Jilani, learned counsel for Waqf Board and
other Muslim parties had given his statement under
Order X Rule 2, C.P.C. on 22.4.2009 and categorically
stated that his parties did not dispute that Lord Ram was
born at Ayodhya (previously this was also an area of
dispute between the parties). Sri Jilani during arguments
repeatedly contended that it was not disputed that Lord

233

Ram was born at Ayodhya, however he very seriously
disputed the assertion that Lord Ram was born at the
premises in dispute. Similar statement under order X
Rule 2 C.P.C. was given on the same date by Messrs
M.A. Siddiqui and Syed Irfan Ahmad learned counsel for
other Muslim parties. The statement is quoted below:-

"For the purposes of this case there is no
dispute about the faith of Hindu devotees of Lord
Rama regarding the birth of Lord Rama at Ayodhya
as described in Balmiki Ramayana or as existing
today. It is, however, disputed and denied that the
site of Babri Masjid was the place of birth of Lord
Rama. It is also denied that there was any Ram
Janam Bhoomi Temple at the site of Babri Masjid
at any time whatsoever.

The existence of Nirmohi Akhara from the
second half of Nineteenth Century onwards is also
not disputed. It is, however, denied and disputed
that Nirmohi Akhara was in existence and specially
in Ayodhya in 16 th Century A.D. or in 1528 A.D.
and it is also denied that any idols were there in the
building of the Babri Masjid up to 22 nd December,
1949."

234

With relation to the birth of Lord Ram, the disputed
premises has been referred to by Hindu parties as
Janam Asthan or Janam Bhoomi. The word l Janam' in
English means 'birth', 'Asthan' means 'place' and
1 bhoomi' means 'land'. No one has used the word
Janam Asthal (birth site in English). In common
parlance, the word birth-place denotes the village, town
or city where one is born.

During arguments, it was also inquired from the
learned counsel for different Hindu parties that
according to them, the words 'Janam Asthan' or ' Janam
Bhoomi' in the context in question denoted what,
whether it meant the exact site where Kaushallia the
mother of Lord Ram gave birth to him ( which from its
very nature could be very very small area of 5 to 10
square yards only) or it meant the room in which the
birth took place, or it meant the mansion where mother
of Lord Ram resided. None of the learned counsel could
give any specific reply to this query. At this juncture it

235

may be noticed again that in the plaint of suit no. 5 by the
deities no effort has been made to identify, specify and
pin point 'the birth place'. The position is otherwise. It
has been stated to be too well known to need any
description. It is also mentioned in the plaint that both
the annexed maps clarify the position. First map is of
premises in dispute and the second of the premises in
dispute and lot of adjoining land most of which was
barren (parti) and unused. Raja Dasharath was a King.
In olden times there was not much demand on the land.
It is given in several books and gazetteers that the fort
of Raja Dasrath was quite big. The mother of Lord Ram
was one of his three or four favourite queens.
Accordingly, it can not be assumed that she used to live
in a 'mansion' constructed only on an area of 1500
square yards. At that time even the houses of medium
level people must be of quite larger area.

It has been mentioned in several books as well as
gazetteers that for a long time till first century, B.C.,

236

Ayodhya was completely deserted and was almost a
jungle. Raja Vikramaditya in First Century, B.C. after
great research located several places connected with
activities of Lord Ram in Ayodhya and constructed/ got
constructed 360 temples thereupon. However, it has
also been mentioned that most of those temples fell
down after passage of time of few centuries and were in
ruined condition. It has also been noticed in various
books and gazetteers that even before the construction
of the mosque in question thousands of pilgrims visited
Ayodhya and treated and believed it to be birth place of
Lord Ram and revered the same as such.

The original Ramayan being in Sanskrit, which was
a language understood by a very-very limited elite was
not accessible to common-men until Tulsi Das (1532-
1623 A.D.) wrote Ram Chant Manas (from 1574 to 1577
A.D.) in common-men's language Awadhi. If a temple
standing on the premises in dispute had been
demolished and a mosque had been constructed

237

thereupon less than 50 years before Tulsi Das wrote
Ram Chant Manas at Ayodhya, there was no reason for
not mentioning the said fact by him in his famous book.
Even if it is assumed that the mosque was subsequently
constructed by Aurangzeb still Tulsi Das should have
mentioned in Ram Chant Manas that a specific small
piece of land admeasuring 1500 square yards or a
temple standing on such a site was birth-place of Lord
Ram. Several learned counsel appearing for different
Hindu parties tried to explain this vital omission on the
ground that Tulsi Das was afraid that in case he
mentioned it, Mughal Emperor of that time would not like
that and he would be harmed. Such a wild allegation/
accusation against a poet of repute and calibre of Tulasi
Das is rather unpalatable even to non Hindus. Apart
from religious importance Ram Chant Manas has got
great poetical value. Poetry is basically flight of
imagination. Wealth and fear are two great retarding
gravitational forces for flight of imagination. No wealthy

238

or fearful person has composed great poetry (This
principle does not apply to prose. Leo Tolstoy who
wrote 'War and Peace' the best novel of the world was a
feudal, lord of Russia of considerable wealth and
position). Moreover, Tulasi Das had given up all the
comforts of life and had virtually renounced the world by
separating himself from his wife for writing Ram Chant
Manas at Ayodhya. A poet in such situation and of
such calibre is not expected to be fearful in writing the
truth. Even if the explanation given by learned counsel
is accepted still it will not improve the position much.
Symbolism and similes are two most essential, handy
tools of poetry. Accordingly, if not directly then at least
symbolically or in similes some indication could have
been given by Tulsi Das regarding the premises in
dispute to be birth-place of Lord Ram and demolition of
temple. Iqbal in one of his verses has said that the
poetry (as well as philosophy) in essence is a word of
desire which cannot be uttered face to face

239

Even in Ayodhya Mahatim compiled during the
period of Akbar, there is no clear indication that the
premises in dispute was birth-place of Lord Ram. Hans
Bakker, a German Research Scholar who has made
great efforts in locating important sites of Ramayan also
could not pinpoint the premises in dispute as birth-place
of Lord Ram in his book Ayodhya published in 1986.

Joseph Tieffenthaler in 1766-71 and Thornton in his
Gazetteer of 1854/58 note conflicting views of locals of
Ayodhya regarding the Mughal Emperor who
demolished the temple and constructed the mosque i.e.
either Babar or Aurangzeb. Such a mega event, if
actually takes place, is not forgotten for centuries. The
confusion particularly during the period of Tieffenthaler
disproves the alleged event.

Conclusions of A.S.I. Report 2003, already quoted,
are not of much help in this regard for two reasons.
Firstly, the conclusion that there is 'evidence of
continuity in structural phases from the tenth Century

240

onward upto the construction of the disputed structure'
is directly in conflict with the pleadings, gazetteers and
history books. Neither it has been pleaded by any party
nor mentioned in any gazetteer or most of the history
books that after construction of temples by
Vikramadittya in first Century B.C. (or third or fourth
century A.D., according to some) and till the
construction of the mosque in question around 1528
A.D. any construction activity was carried out at the site
of the premises in dispute or around that. Secondly,
in case some temple had been demolished for
constructing the mosque then the superstructure
material of the temple would not have gone inside the
ground. It should have been either reused or removed.
No learned counsel appearing for any of the Hindu
parties has been able to explain this position.

It has been mentioned in the A.S.I. Report 2003
that underground portion contained several such items,
which are associated with the temples of north India,

241

e.g. mutilated sculpture of divine couple, faliage
patterns, amalaka, lotus motive etc. Only in case of
severe earthquake or in case of flood of very high
magnitude superstructure immediately goes down inside
the ground otherwise remains of a ruined building go
inside the ground after centuries and not immediately
after falling down of the building. It is also important to
note that neither there is any requirement nor practice
that even in the foundations of temple, there must be
such items, which may denote the nature of the
superstructure.

Accordingly, it is abundantly clear that firstly no
temple was demolished for constructing the mosque and
secondly until the mosque was constructed during the
period of Babar, the premises in dispute was neither
treated nor believed to be the birth-place nothing but
birth-place and the whole birth-place of Lord Ram. It is
inconceivable that Babar (or Aurangzeb) should have
first made or got made thorough research to ascertain

242

the exact birth-place of Lord Ram, which was not known
to anyone for centuries and then got constructed the
mosque on the said site.

The only thing which can be guessed, and it will be
quite an informed guess taking the place of finding in a
matter, which is centuries old, is that a very large area
was considered to be birth-place of Lord Ram by
general Hindus in the sense that they treated that
somewhere in that large area Lord Ram was born
however, they were unable to identify and ascertain the
exact place of birth, and that in that large area there
were ruins of several temples and at a random small
spot in that large area Babar got constructed the
mosque in question.

Since after construction of the mosque Hindus
started treating/believing the site thereof as the exact
birth place of Lord Ram. It has come in the oral
evidence of several Hindus and some Muslims
(discussed in detail in the judgment of brother

243

S.Agarwal,J) that Hindus believed that the most precise
place of birth of Lord Ram was the place beneath the
Central dome of the Mosque. Accordingly, it is held that
for some time before 1949 Hindus started to believe as
such.

Sri Jilani, learned counsel for Waqf Board and other
Muslim parties has fairly conceded that it is quite
possible that some material of some ruined temple may
have been used in the construction of the mosque.
Carnegy has also mentioned that when Faizabad was
inhabited, several people while constructing their
houses in Faizabad took away the materials of ruined
temples from Ayodhya.

Carnegy has also mentioned that Ayodhya was
important for Jains and Baudhs also apart from Hindus
and their religious places were also there in Ayodhya.
Relevant paragraphs of Carnegy's sketch published in
1870 are quoted below:

244

"The cradle alike of Hindus, Budhists and
Jains. — It is not easy to over-estimate the historical
importance of the place which at various times and
in different ages has been known by the names of
Kosala, Ajudhia and Oudh; because it may be said
to have given a religion to a large portion of the
human race, being the cradle alike of the Hindus,
the Budhists, and the Jains.

Of Budhism too, Kosala has without doubt, a
strong claim to be considered the mother. Kapila
and Kasinagara both in Gorakhpur and both of that
country (Kosala) are the Alpha and Omega of
Sakya Muni, the founder of that faith. It was at
Kapila that he was born; it was at Ajudhia that he
preached, perhaps composed those doctrines
which have conferred upon him a world-wide fame;
and it was at Kasinagara that he finally reached
that much desiderated stage of annihilation by
sanctification, which is known to his followers as
Nirvana B. C. 550.

In Ajudhia then, we have the mother of the
Hindus, as typified by Rama, the conqueror of the
South; of the Budhists, as being the scene of the

245

first great protest against caste by the originator of
a creed whose disciples are still counted by
millions; and of the Jains, as being the birth-place
of the originator of doctrines which are still reserved
by several of our most influential mercantile
families. "

In the same report, Carnegy has mentioned that the
Kasauti pillars, which were used in the construction of
mosque, strongly resembled Buddhist pillars which he
had seen at Benaras. (Said portion has already been
quoted earlier).

Accordingly, it is also possible that there were also

ruins of some Buddhist religious place on and around

the land on which the mosque was constructed and

some material thereof was used in the construction of

mosque.

V- Whether idols were placed inside the constructed
portion for the first time on 23.12.1949?

Issue No.12 of Suit No.4,
Issue No.2 of Suit No. 1,

246

Issue No.1 of Suit No. 3,
Issues No.3(a) & 4 of Suit No. 5

It has been held under the previous heading that the

constructed portion and the inner courtyard was a mosque

and used by Muslims for offering only friday prayer for

some time before 22/23.12.1949. (Prior to that friday fell

on 16.12.1949). In Para-27 of plaint of Suit No. 5, it is

mentioned that in the night of 22nd/23 rd December, 1949,

the idol of Bhagwan Sri Ram was installed with due

ceremony under the central dome of the building also. Sri

Deoki Nandan Agarwala, original plaintiff No. 3 in Suit No. 5

also in his statement under Order X Rule 2 C.P.C. dated

30.04.1992 categorically stated that the idol was placed

inside the central dome on 22nd/ 23 rd December, 1949. In

the said statement, it was also mentioned that Sri

Paramhans Ramchandra along with some other person

placed/ transferred the idol to the central dome. Sri

Paramhans Ramchandra plaintiff of Suit No. 2 (already

got dismissed as withdrawn) also in his oral statement

categorically asserted/ admitted that the idol was so

247

placed on 22nd/ 23 rd December, 1949. Dharam Das,
chela of Baba Abhai Ram Das substituted at the place of
Baba Abhai Ram Das after his death as Defendant No. 13
in Suit No. 4 categorically admitted in para 11 -A of his
written statement that his Guru Baba Abhai Ram Das
placed the idol on the pulpit in the early hours of
23.12.1949. (It is unfortunate that late Baba Abhai Ram
Das in his written statement did not admit the said fact). It
is stated in para 13 of the written statement filed by the
Deputy Commissioner, Faizabad on behalf of State of
U.P. Defendant No. 6 and in para 13 of the written
statement filed by the S.P. of Faizabad Defendant No. 9 in
Suit No.1 that "on the night of 22 nd December 1949 the
idols of Sri Ram Chandra Ji were surreptitiously and
wrongly put inside it." In the the diary/ report and letters of
D.M. and S.P. of December 1949, referred to in the
introduction part, same thing was stated repeatedly.

Accordingly, it is held that the idols were kept on the
pulpit inside the constructed portion/ mosque for the first
time in the night of 22 nd /23 rd December, 1949.

248

VI- When the Ram Chabutra etc. in the outer
courtyard came into existence:-

Issues No. 19(a) & 27 of Suit No.4,
Issues No.2, 3 & 4 of Suit No.1 ,
Issue No.1 of Suit No. 3,

During arguments learned counsel for Waqf Board

and other Muslim parties could not give even a tentative

period when Ram Chabutra etc. in the outer courtyard

came into existence, however some Muslim parties

stated that it was constructed in 1855. Some of the

Hindu parties asserted that it was in existence since the

time of construction of the building in the premises in

dispute. Both the versions are two extremes. Tiffenthaler

who visited the area in question in between 1766 to

1771 A.D., noted the existence of the Ram Chabutra.

Accordingly, it must have been there since before. Its

existence is noticed in several subsequent gazetteers

reports etc. On the other hand, it is inconceivable that

at the time of construction of mosque simultaneously a

worshipping place of Hindus would have been either

249

permitted to remain inside the boundary wall or
permitted to be constructed therein. Accordingly, the
only thing which can be said is that it came into
existence before visit of Joseph Tieffenthaler but after
construction of mosque. Similar is the position of Sita
Rasoi near the northern gate, which was opened in
1877.
VII- Possession and Title:-

Issues No.2, 4, 13, 15, 19(a) & 28 of Suit No.4,
Issues No.2, 3, 4 & 7 of Suit No.1

From the above it is quite clear that since much
before 1855 both the parties were using the premises in
dispute as their religious places. The constructed portion
and the entire adjoining land of the premises in dispute
was surrounded by a boundary wall having a gate. It was
not very big in area (only 1500 square yards). There is no
such suggestion on the part of any of the parties that the
premises in dispute was used for any other purpose
except worship. In such situation, the moment one enters

250

the main gate he is in the premises. Thereafter, it cannot
be said that some one is in only part of the premises. For
convenient use, different owners/ possessors may
exclusively use different portions of a premises, however it
will not mitigate against joint possession. To illustrate if a
person dies leaving behind a moderate house and two
sons and the sons for the sake of convenience use
different portions of the house along with their families, it
cannot be said that they are not in joint possession of the
entire house. Use and occupation of different portion by
each son for the sake of convenience does not amount to
formal partition. Exactly similar is the position in respect of
premises in dispute also. The position cannot be said to
have substantially changed by construction of the railing
in 1856/ 1857. This bifurcation may also very well be
described as convenient use of separate portions by two
joint possessors.

Muslims have not been able to prove that the land
belonged to Babar under whose orders the mosque was
constructed. Similarly Hindus have not been able to prove

251

that there was any existing temple at the place where the

mosque was constructed after demolishing the temple. It

has also not been proved by the Hindus that the specific

small portion i.e. premises in dispute of 1500 square yards

was treated, believed and worshipped as birth-place of

Lord Ram before construction of mosque. In such situation

when both the parties have failed to prove initial title,

(commencement of title) it is possession and possession

alone which decides the question of title in accordance

with Section 110, Evidence Act, which is quoted below:-

"110. Burden of proof as to
ownership.- When the question is whether
any person is owner of anything of which he
is shown to be in possession, the burden of
proving that he is not the owner is on the
person who affirms that he is not the
owner "

The principle of this Section applies with greater force
in case of very old possession for about a century or
more.

Ownership is highest form of title. On the principle

252

that whole includes part, the Section 110, Evidence Act
applies to such title also, which is inferior to ownership. In
the matter of worshipping places, ownership does not vest
in any human being.

In "Patinhare Purayil Nabeesumma v. Miniyatan
Zacharias" AIR 2008 SC 1456, in Paras No. 19 to 24,
particularly Para No. 24, it has been held that if on
agricultural land possession for a long period is proved
presumption of title follows under Section 110, Evidence
Act backward as well as forward. Similarly in "Gurunath
Manohar Pavaskar v. Nagesh Siddappa Navalgund"
AIR 2008 S 901, it has been held that if possession at a
particular point of time is proved, its presumption
backward and forward follows (Para-12).

In Lachho Vs. Har Sahai, (1890) 12 ILR All. 46, it

was held as follows:

"The question of onus in such cases is regulated
by the principle formulated in S. 110 of the Evidence
Act, I of 1872, a principle which only gives effect to a
well known principle of law common to all systems
of jurisprudence, that possession is prima facie

253

evidence of title."

At another place, it was held that "But I also hold that
when possession for thirty or forty years is proved to have
been peaceably enjoyed, the person who has recently
dispossessed such plaintiff has to meet the presumption
of law, that the plaintiff's long possession indicates his
ownership of the property. "

In the said judgment, the plea that the person in

possession was licensee was not allowed to be raised as

it has not been pleaded. In "Nair Service Society Ltd. v.

K. C. Alexander" AIR 1968 SC 1165, it has been held in

Para-15that:

" When the facts disclose no title in either party,
possession alone decides."

The above authority has been followed in "Chief
Conservator of Forests, Govt, of A.P. v. Collector" AIR
2003 SC 1805. In Paragraphs-17 to 21, it has been held
that in the absence of any clear title with either party, the
party in possession is presumed to be holding the title.

254

These principles apply with greater force in case of
joint possession.

Accordingly, in view of the above findings and in
accordance with the principle of Section 110, Evidence
Act, i.e. title follows possession it is held that both the
parties were/ are joint title holders in possession of the
premises in dispute. Even if it is assumed that muslims
were dispossessed for six days from 23.12.1949 till
29.12.1949, when property in dispute was attached it will
be of no consequence. Since 29.12.1949 receiver is
holding the property for the benefit of true owner.

VIM- Whether the mosque was valid mosque etc.

Issues No. 1-B (b), 19(d), 19(e), 19(f) and 20(a) of

Suit No.4,

Issue No.6 of Suit No.3,

Issues No. 1 and 1 1 of Suit No. 5

Under Muslim law no one can construct a mosque

over the land of the other unless the other i.e. the owner

permits or sanctions afterwards for the same. It has

been held earlier that it is not proved that the land over

255

which the mosque was constructed belonged to Babar
or to the person under whose orders the mosque was
constructed. However, it has also been held that it has
not been proved that land belonged to any one else
hence from existence of mosque for a long period title
will be presumed. Accordingly, it cannot be said that the
mosque was not a valid mosque having been
constructed over the land of some one else.

As far as dedication is concerned, there is no
difficulty in presuming the dedication by user. If a
mosque is constructed at a place which is not adjacent
to residence or other building of the person who
constructs the mosque and public offers prayer therein,
dedication by user is to be presumed. It has been held
in the earlier part of this judgment that since its
construction prayers were offered in the mosque in
question and Friday prayer were being offered uptil
16.12.1949.

The fact that there was no minaret in the mosque is

256

utterly immaterial. It is not an essential condition of
mosque.

The fact that there was no arrangement for vazoo
(washing exposed parts of body before prayer) is a bit
strange. Even though it is not one of the most essential
parts of a mosque however, normally in the mosques
such provision is there. Even though in the year 1949
no place for vazoo was there however, in the map
prepared by the Amin in the suit of 1885 such a place
has been shown. Accordingly, it cannot be said that the
mosque did not remain a mosque as facility for vazoo
was dis-continued some time after 1885. Most of the
people who come to a mosque for offering prayer do
vazoo in their houses however, some use the facility for
vazoo in the mosque.

There is no absolute prohibition that near or in a
graveyard there cannot be a mosque. In any case the
graveyard around the mosque came into existence after
construction of mosque as about 75 Muslims were killed

257

in the riot of 1855 and buried around the mosque.

Use of the material of the ruined temple in
constructing the mosque cannot be said to be
desirable. However, it is not such that it renders the
mosque to be no mosque in the eye of law. The figures
if any on the kasauti pillars were scratched in such
manner that they did not remain visible. However, even
if some figure retained some character, use and
continuance of such pillar in the mosque can by
maximum be said to be irregular. It cannot destruct the
very character of mosque. It is correct that in a mosque
there should not be any photo or carving of any living
creature however, it is for the conscience of the Muslims
who in a mosque go to pray to decide as to whether it is
appropriate for them to offer prayer even if it contains
one or two such pillars on which such figures may be
discernible even though with some difficulty.

In the suit of 1945 (R.S. No.29 of 1945) in between
Sunni and Shiya Waqf Board it has been held that the

258

mosque in question is a Sunni Waqf. During arguments
no learned counsel on behalf of Shiya Waqf Board
raised any argument regarding the mosque in question
to be Shiya Waqf.

IX- Miscellaneous findings

(a) Whether premises in dispute a deity etc .

Issues No.1 of Suit No. 5

As has been held in the earlier part of this
judgment, it is not proved that since before the
construction of the mosque the premises in dispute was
specifically treated or believed to be the birth place of
Lord Rama. Accordingly, it is not necessary to decide
as to whether in any case land itself can be a deity
under Hindu Law or not.

However, there cannot be any doubt that an idol is
a deity capable of holding property. Accordingly, suit
no. 5 is quite maintainable on behalf of plaintiff no.1 .

259

(b) Issue No. 21 ofSuitNo.4:-

I fully agree with the view taken by my esteemed
brother Sudhir Agarwal,J in his judgment to the effect
that even though deity is not one of the defendants in
suit no.4 still the suit cannot be dismissed on this ground
as deity is sufficiently represented. Moreover, suit no. 5
is on behalf of deity/idol and as all the suits have been
consolidated hence the defect if any (of non
impleadment of deity) in suit no.4 stood cured.

Issues No. 4,10,15 of Suit No.4,
Issues No. 3 and 8 of Suit No. 3,
Issue No. 16 ofSuitNo.5,

As has been held in the earlier part of this
judgment, both the parties are in joint possession since
before 1855 hence there is no need to decide the
question of adverse possession and its requirement.

260

(d) Issue no.1-B (a) of suit no.4

As the structure which was standing at the time of
filing of the suit has been demolished on 6.12.1992
hence it is no more necessary to decide the question of
identification of the property and plot no. etc. now the
premises in dispute including the site of the demolished
constructed portion is to be ascertained by the
possession of the present makeshift temple constructed
on 6/7 December 1992 under the Central Board. In any
case the property shown by letters A,B,C,D,E,F in the
map prepared by the Commissioner in suit no.1 is the
premises in dispute as held earlier.

(e) In respect of findings on other issues (except
issues relating to relief) I fully agree with the findings of
my brother Sudhir Agarwal, J. subject to any thing
contrary stated/found in this judgment of mine.

261

Relief:-

lssueNo.16 ofSuitNo.4,
Issue No. 17 of Suit No. 1,
Issue No.13 of Suit No.3,
Issue No.30 of Suit No.5

Order VII Rule 7, C.P.C. is quoted below:

"7. Relief to be specifically stated- Every plaint
shall state specifically the relief which the plaintiff
claims either simply or in the alternative, and it shall
not be necessary to ask for general or other relief
which may always be given as the Court may think
just to the same extent as if it had been asked for.
And the same rule shall apply to any relief claim by
the defendant in his written statement "

In the Privy Council authority reported in
Khagendra Narain Chowdhry Vs. Matangini Debi,
(1890) ILR 17 Cal. 814, the facts were that two
Zamindars were claiming exclusive ownership over
certain source of water (Sota). Both the parties had filed
cross suits. Sub-ordinate Judge decided in favour of one
of the parties, i.e. Zamindars of Mechpara. The High

262

Court differed with the Sub-ordinate Judge and held that

both the parties had failed to prove title to the exclusive

possession of the Sota in question. Accordingly, High

Court had dismissed both the suits. The Privy Council

held has follows:

"Their Lordships arrive at the same conclusion as
the High Court with regard to the insufficiency of
proof given either by the zemindars of Mechpara or
by the zemindars of Chapar as to the right and title
to the exclusive possession of the sota in question.
But their Lordships are of opinion that the decrees
of the High Court cannot be supported as
pronounced by the High Court. They are of opinion
that, although neither party has proved a title to an
exclusive possession, there can be no doubt that
possession belongs to the zemindars of Mechpara
and to the zemindars of Chapar.
The evidence, in the opinion of their Lordships is
insufficient, as already stated, to establish an
exclusive possession by either of the parties. On
the other hand, it is equally cogent in their
Lordships' opinion to show that there is possession
between the two.

263

The result that their Lordships arrive at is that the
decrees of the Subordinate Court and of the High
Court should be respectively reversed, and each of
the parties be declared entitled to an equal moiety
of the sota opposite to and adjoining their
respective zemindaris, and be decreed to be put
into possession thereof accordingly "
In none of the suits joint possession had been

claimed still the Privy Council granted decree for joint

possession.

In Muthu Ramakrishna Naicken vs. Marimuthu

Goundan and Anr, AIR 1914 Madras 128 (D.B.), it has

been held in the last two sentences of the judgment that:

"Though the suit is one in ejectment, a decree for
joint possession may be passed."

In AIR 1913 Madras 567, the suit was filed for
exclusive possession, however it was decreed for joint
possession and it was directed that parties might file suit
for partition.

In "Pandohi Ahir v. Faruq Khan and Anr." AIR

264

1954 All 191, the suit for possession had been filed.
The High Court held that the prayer clause in the plaint
was not properly worded and the Courts below had also
not given due consideration to the decree which should
have been passed holding that one of the defendants
was co-sharer. The claim of the plaintiff was decreed for
joint possession even though no payer for joint
possession had been made.

In Sardar AM Raza Khan Vs. Sardar Nawazish AM
Khan, AIR 1943 Oudh 243 (DB), it was held that even
though suit for exclusive title and possession was filed,
however in view of complicated question involved in the
case, it was not expected of the plaintiff to pray for joint
possession even in the alternative. Ultimately, decree
for the possession of one fifth of a particular immovable
property was passed in favour of the plaintiff. The plea
that such a decree was not asked for and in the
absence of amendment in the plaint it could not be
granted was turned down. Two last paragraphs on Page

265

No.259 & 260 (except quotations) are quoted below:

"No doubt contention No. 3 that the defendant
being in sole possession of the property is a
trespasser so far as the shares of the plaintiff and
his brothers are concerned is correct
Nevertheless, if we accepted the finding of the
Hon'ble Single Judge that he is owner of one-third
under the deed of appointment he would not be
liable to ejectment excepting by partition. It is also
correct to say that where more is claimed any
smaller amount may be given if found due to the
plaintiff. These points are not the points on which
the learned trial Judge has based his refusal to
give a decree for joint possession. He considers
that it would be an unjustifiable alteration of the
nature of the suit, unless the plaintiff had amended
his plaint. We have considered this point of view
carefully and have come to the conclusion that a
decree for joint possession would not be such
alteration of the frame of the suit as to cause any
hardship or injustice to the defendant. It is true that
plaintiff was given an opportunity of amending his
plaint but had he done so, it appears to us that he
would have been giving up all claim to the very

266

much larger benefits which he claimed in this
appeal. He could scarcely be expected to do this
when so many intricate questions of law were
involved. The suit was complicated, and it was
difficult for plaintiff to know exactly what he would
get. Many of these legal points might, from the
litigant's point of view, be decided one way or the
other. We have no reason to think that his claim to
all the property was not bona fide. That being so,
we think it would be hard to penalise him and put
him to the trouble of bringing another suit merely
because it turns out that he claimed too much and
that his claim if successful in toto would have
involved the ejectment of the defendant.
Appellant's learned Counsel cites Mulla's Civil
Procedure Code (Edn. 11), Order 14, Rule 1 at p.
691,

In the present case, there is certainly some
measure of inconsistency between the plaintiff's
claim to sole and exclusive rights over the whole
property under the will and his claim as co-heir on
account of the failure of the gift over and the
absolute vesting of all these properties in
Mohammad AH Khan. The litigation however is so
complicated that neither side has completely

267

succeeded in keeping its case free from
inconsistency. We think that it would be quite
wrong to give the plaintiff a decree for possession
of the whole property on behalf of himself and his
brothers who are his co-heirs. He brought the suit
for possession which would exclude his brothers,
and to give him a decree in a representative
capacity would be entirely inconsistent with the
frame of the suit. We do not, however, consider
that there is anything illegal or unjust in granting
him a personal decree for the share of the property
which has been found to be his. This decree will
not be binding upon his brothers who were not
parties to the suit, nor on his sisters who are said
by the parties to the suit to be excluded from
inheritance. As to the argument supported by an
application and a certified copy of a registered sale
deed that the appellant has sold his share to
another member of the family, we do not think that
this can affect the decision of the appeal. Up to
practically the end of the hearing of this appeal the
fact was never brought to the notice of the Court,
and on the evidence on the file there can be no
doubt that plaintiff is entitled to a share of this
property. If he has sold it, the vendee's interest will

268

not be affected adversely by a decree for
possession being given to the appellant In fact the
giving of such a decree will, in our opinion, be in
the interests of the vendee too. We therefore allow
the appeal of the appellant to this extent that he be
given a decree for the possession of one-fifth of the
Rakh Juliana property but we dismiss the rest of
his appeal. The parties will get their costs
proportionate to success and failure in both
Courts. "

In "Managobinda v. Brajabandhu Misra" AIR
1986 ORISSA 281, in Para-1 1 onwards, it was held that
if exclusive ownership is claimed but joint ownership is
proved, suit can be decreed for joint ownership. That
was a case for exclusive title. Some of the authorities
quoted above were considered in the said authority of
Orissa High Court.

In "Pendyala Narasimham v. Pendyala Venkata
Narasimha Rao", AIR 1963 AP 78, amendment was
also allowed. In Para-24 of the said authority, it was held

269

that "On the other hand, there are decisions from which
the principle emerges that a suit for ejectment could be
regarded as one for partition if the plaintiff was found
entitled to it even in the absence of an alternative claim."
Several other authorities were considered in the said
authority also.

In Gangaram Ramachandra Vs. Butrusao, AIR
1952 Nagpur 202 (DB), by Hon'ble Bose and
Hidayatullah, JJ., in Para-27 it was held that "we can
see no reason why a suit for exclusive possession of 16
annas cannot be turned into a suit for partition and
possession of such share as may be determined to
belong to the plaintiff if the defendants contend, or it is
found that the plaintiff is not entitled to the whole but
only to a part."

In "Smt. Neelawwa v. Smt. Shivawwa" AIR 1989
KARNATAKA 45 placing reliance upon "Rangappa v.
Jayamma" (1987) 2 Kant LJ 369 it has been held as
follows in Para- 10:

270

"10. It is contended by Sri A.B. Patil, learned
Counsel for respondent/defendant that in the suit
the plaintiff has only sought for a declaration and
injunction restraining the defendant from alienating
the suit property and there is no prayer for partition
and separate possession, therefore, the prayer
made by the appellant cannot at all be granted. No
doubt in the plaint there is no specific prayer made
by the plaintiff seeking partition and separate
possession of her share in the suit land. In our
opinion, this should not come in the way of granting
a preliminary decree for partition and separate
possession of the share of the plaintiff. Once it is
declared that the plaintiff is entitled to a half share
in the suit land, the necessary consequence of it is
to divide the suit land and give her half share. As all
the persons entitled to a share in the suit land are
parties to the suit, in a suit of this nature the relief
for partition must be deemed to have been prayed
for in the suit. It is also relevant to notice that the
relief of partition and separate possession flows
from the same cause of action which forms the
basis for the present suit. Denial of such a relief
would only lead to another suit. Multiplicity of
proceedings should normally be avoided as the

271

same tends to delay justice. In the facts and
circumstances of the case the relief of partition and
separate possession becomes a consequential
relief In First Appeal No. 231 of 1987 , Rangappa
v. Jayamma decided on 17-6-1987* under more or
less similar circumstances we have considered the
scope of R. 7 of O. VII of the Civil P. C. and held as
follows : -

"The words " and it shall not be necessary to ask
for general or other relief which may always be
given as the Court may think just to the same
extent as if it had been asked for" are wide enough
to empower the Court to grant such relief. The
plaintiff is entitled to, on the facts established on
the evidence on record, even if such relief has not
been specifically prayed for.
8.1. The provisions of O.VII R.7 of the C.P.C. are
so widely worded that they do enable the Court to
pass a decree for partition in a suit for declaration
of title to immoveable property and possession
thereof where it turns out that the plaintiff is not
entitled to all the interest claimed by him in the suit
property. In such a situation there is nothing
unusual in giving relief to the parties by directing
partition of the suit property according to the share

272

of the parties established in the suit. The normal
rule that relief not founded on the pleadings should
not be granted is not without an exception. Where
substantial matters constituting the title of all the
parties are touched in the issues and have been
fully put in evidence, the case does not fall within
the aforesaid rule. The Court has to look into the
substance of the claim in determining the nature of
the relief to be granted. Of course, the Court while
moulding the relief must take care to see that relief
it grants is not inconsistent with the plaintiff's claim,
and is based on the same cause of action on which
the relief claimed in the suit, that it occasions no
prejudice or causes embarrassment to the other
side; that it is not larger than the one 2claimed in
the suit, even if, the plaintiff is really entitled to it,
unless he amends the plaint; that it had not been
barred by time on the date of presentation of the
plaint.

8.2. No doubt the plaintiff has sought for exclusive
title and he has not been able to prove his
exclusive title; but has been able to prove that he is
entitled to a half share in the suit properties. When
a party claims exclusive title to the suit property
and is liable to establish that he is entitled to half of

273

the suit property, it will not be unusual for the Court
to pass a decree for partition and possession of his
half share. In fact such a relief flows from the relief
prayed for in the plaint that he is the exclusive
owner of the entire property. When a larger relief is
claimed and what is established is not the entire
relief claimed in the suit but a part of it, as whole
includes a part, larger relief includes smaller relief,
and it also arises out of the same cause of action.
Therefore in the instant case, nothing prevented
the Court to pass a decree for partition, in order to
avoid another suit for partition and to give relief to
the party in conformity with the right he had
established. "

Therefore we are of the view that instead of driving
the plaintiff to another suit for partition, in
conformity with the right she has established, it is
just and appropriate to pass a preliminary decree
for partition and separate possession of her half
share. The plaintiff has not also lost her right in the
suit property because the suit is filed within 12
years from the date of the death of her father. In
other words, within 12 years from the date the
property developed upon her or the succession
opened. Therefore, even if a separate suit has to

274

be filed for partition, the defendant does not have
any sustainable defence. Therefore no prejudice
will be caused to the defendant/respondent if a
preliminary decree for partition and separate
possession is passed in this suit itself Accordingly
Point No. 2 is also answered in the affirmative and
in favour of the plaintiff/appellant. "

Accordingly, in view of the Vllth finding (Supra) all
the three parties (Muslims, Hindus and Nirmohi Akhara)
are entitled to a declaration of joint title and possession
to the extent of one third each and a preliminary decree
to that effect is to be passed.

In the matter of actual partition it is only desirable
but not necessary to allot that part of property to a party
which was in his exclusive use and occupation.
Accordingly, in view of peculiar facts and circumstances
it is held that in actual partition, the portion where the
idol is presently kept in the makeshift temple will be
allotted to the Hindus and Nirmohi Akhara will be
allotted land including Ram Chabutra and Sita Rasoi as

275

shown in the map, plan I. However, to adjust all the
three parties at the time of actual partition slight
variation in share of any party may be made to be
compensated by allotting the adjoining land acquired by
the Central Government.

Epilogue

My judgment is short, very short. Either I may be
admired as an artist who knows where to stop,
particularly in such sensitive, delicate matter or I may be
castigated for being so casual in such a momentous
task. Sometimes patience is intense action, silence is
speech and pauses are punches.

I have not delved too deep in the history and the
archaeology. This I have done for four reasons. Firstly
this exercise was not absolutely essential to decide
these suits. Secondly I was not sure as to whether at
the end of the tortuous voyage I would have found a
treasure or faced a monster (treasure of truth or monster

276

of confusion worst confounded). Thirdly having no
pretence of knowledge of history I did not want to be
caught in the crossfire of historians. Fourthly, the
Supreme Court in Karnataka Board of Waqf Vs.
Government of India, 2004 (10) SCC 779 has held in
Para-8 as follows:-

"As far as a title suit of civil nature is

concerned, there is no room for historical facts and

claims. Reliance on borderline historical facts will

lead to erroneous conclusions. "

As this judgment is not finally deciding the matter
and as the most crucial stage is to come after it hence I
remind both the warring factions of the following.

The one quality which epitomized the character of
Ram is tyag (sacrifice).

When prophet Mohammad entered into a treaty
with the rival group at Hudayliyah, it appeared to be
abject surrender even to his staunch supporters.
However the Quran described that as clear victory and it

277

did prove so. Within a short span therefrom Muslims
entered the Mecca as victors, and not a drop of blood
was shed.

Under the sub-heading of demolition I have
admired our resilience. However we must realise that
such things do not happen in quick succession. Another
fall and we may not be able to rise again, at least
quickly. Today the pace of the world is faster than it was
in 1992. We may be crushed.

I quote two verses of Iqbal which were also quoted
by Justice R.S. Dhawan in A.C. Datt vs. Rajiv Gandhi,
AIR 1990 Allahabad 38:

cffr eKellRifi ^ Wf^ t 3TMTTPTf *f I I

^ w\^f\ cfr te ^rrsfnY ^ fB^wi cncff i

An observation of Darwin is also worth quoting at
this juncture (what an authority to quote in a religious

278

matter/ dispute!):

"Only those species survived which

collaborated and improvised. "

Muslims must also ponder that at present the entire
world wants to know the exact teaching of Islam in
respect of relationship of Muslims with others. Hostility
- peace - friendship - tolerance - opportunity to impress
others with the Message - opportunity to strike wherever
and whenever possible - or what? In this regard
Muslims in India enjoy a unique position. They have
been rulers here, they have been ruled and now they
are sharers in power (of course junior partners). They
are not in majority but they are also not negligible
minority (Maximum member of Muslims in any country
after Indonesia is in India.) In other countries either the
Muslims are in huge majority which makes them
indifferent to the problem in question or in negligible
minority which makes them redundant. Indian Muslims
have also inherited huge legacy of religious learning and

279

knowledge. They are therefore in the best position to
tell the world the correct position. Let them start with
their role in the resolution of the conflict at hand.

Before parting I thank Hon'ble the Chief Justice
C.K. Prasad (now an Hon'ble Judge of Supreme Court)
for giving the responsibility and providing opportunity to
me to decide this historical case by inducting me in this
Bench. We are also thankful to Hon'ble the Chief
Justice H.L. Ghokhale (now an Hon'ble Judge of
Supreme Court) for inducting Hon'ble Sudhir Agarwal, J.
in this Bench who is extremely labourious, very upright
and considerably balanced.

GIST OF THE FINDINGS

1 . The disputed structure was constructed as mosque
by or under orders of Babar.

2. It is not proved by direct evidence that premises in
dispute including constructed portion belonged to Babar

280

or the person who constructed the mosque or under
whose orders it was constructed.

3. No temple was demolished for constructing the
mosque.

4. Mosque was constructed over the ruins of temples
which were lying in utter ruins since a very long time
before the construction of mosque and some material
thereof was used in construction of the mosque.

5. That for a very long time till the construction of the
mosque it was treated/believed by Hindus that some
where in a very large area of which premises in dispute
is a very small part birth place of Lord Ram was
situated, however, the belief did not relate to any
specified small area within that bigger area specifically
the premises in dispute.

6. That after some time of construction of the mosque
Hindus started identifying the premises in dispute as
exact birth place of Lord Ram or a place wherein exact
birth place was situated.

281

7. That much before 1855 Ram Chabutra and Seeta
Rasoi had come into existence and Hindus were
worshipping in the same. It was very very unique and
absolutely unprecedented situation that in side the
boundary wall and compound of the mosque Hindu
religious places were there which were actually being
worshipped along with offerings of Namaz by Muslims in
the mosque.

8. That in view of the above gist of the finding at serial
no. 7 both the parties Muslims as well as Hindus are held
to be in joint possession of the entire premises in
dispute.

9. That even though for the sake of convenience both
the parties i.e. Muslims and Hindus were using and
occupying different portions of the premises in dispute
still it did not amount to formal partition and both
continued to be in joint possession of the entire
premises in dispute.

10. That both the parties have failed to prove

282

commencement of their title hence by virtue of Section
110 Evidence Act both are held to be joint title holders
on the basis of joint possession.
11. That for some decades before 1949 Hindus started
treating/believing the place beneath the Central dome of
mosque (where at present make sift temple stands) to
be exact birth place of Lord Ram.

12. That idol was placed for the first time beneath the
Central dome of the mosque in the early hours of
23.12.1949.

11. That in view of the above both the parties are
declared to be joint title holders in possession of the
entire premises in dispute and a preliminary decree to
that effect is passed with the condition that at the time of
actual partition by meets and bounds at the stage of
preparation of final decree the portion beneath the
Central dome where at present make sift temple stands
will be allotted to the share of the Hindus.

283

Order: -

Accordingly, all the three sets of parties, i.e.
Muslims, Hindus and Nirmohi Akhara are declared joint
title holders of the property/ premises in dispute as
described by letters A B C D E F in the map Plan-I
prepared by Sri Shiv Shanker Lai, Pleader/
Commissioner appointed by Court in Suit No.1 to the
extent of one third share each for using and managing
the same for worshipping. A preliminary decree to this
effect is passed.

However, it is further declared that the portion
below the central dome where at present the idol is kept
in makeshift temple will be allotted to Hindus in final
decree.

It is further directed that Nirmohi Akhara will be
allotted share including that part which is shown by the
words Ram Chabutra and Sita Rasoi in the said map.

It is further clarified that even though all the three
parties are declared to have one third share each,

284

however if while allotting exact portions some minor
adjustment in the share is to be made then the same will
be made and the adversely affected party may be
compensated by allotting some portion of the adjoining
land which has been acquired by the Central
Government.

The parties are at liberty to file their suggestions for
actual partition by metes and bounds within three
months.

List immediately after filing of any suggestion/
application for preparation of final decree after obtaining
necessary instructions from Hon'ble the Chief Justice.

Status quo as prevailing till date pursuant to
Supreme Court judgment of Ismail Farooqui (1994(6)
Sec 360) in all its minutest details shall be maintained
for a period of three months unless this order is modified
or vacated earlier.
Date:30.09.2010

RS/NLY/VKG

285

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